Citation Nr: 21016222 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 15-14 406 DATE: March 22, 2021 ORDER 1. Entitlement for an initial compensable evaluation for service-connected bilateral hearing loss is denied. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Hearing has been manifested by hearing acuity of no worse than level II hearing in the right ear and level III hearing in the left ear. 2. The Veteran's service-connected disabilities do not prevent him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2019). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1974 to May 1976. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a January 2018 hearing. These issues were previously before the Board in October 2018 and October 2020, when they were remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board finds there was substantial compliance with the October 2020 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The October 2020 Board remand instructed the RO to obtain and associate with the claims file October 2013 and November 2019 VA audiograms, to verify with the Veteran’s private audiological examiners to clarify their findings, and to provide the Veteran with a new VA examination. The VA audiograms were successfully added to the claims file in October 2020. The RO sent letters in November and December 2020 to each of the private providers requesting clarification and received no response. In December 2020, the RO sent a letter to the Veteran informing him that they have sent two requests to the providers, but that it is ultimately his responsibility to ensure VA receives the information. In January 2021, the RO sent the Veteran a letter requesting that he authorize for release the treatment records using VA Form 21-4142 so that they could obtain the information on his behalf. The Veteran did not reply to this letter. The duty to assist a claimant is not a one-way street, and in the instant case, the Veteran must cooperate by responding to the RO’s request for authorization to request records to the full extent in the development of the claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that VA’s duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary). Thus, the Board may proceed to adjudicate the claims herein. 1. Entitlement for an initial compensable evaluation for service-connected bilateral hearing loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Here, the Veteran filed his claim for service connection in March 2012. Accordingly, relevant evidence from March 2012 until the present will be considered. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of a disability from defective hearing, the rating schedule establishes eleven auditory levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. To evaluate an individual’s level of disability, Table VI is used to assign a roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. 38 C.F.R. § 4.85(b). Table VII is used to determine the percentage evaluation by combining the roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). If impaired hearing is service-connected in only one ear, the nonservice-connected ear will be assigned a roman number designation of level I. 38 C.F.R. § 4.85. The rating criteria for alternative ratings when an exceptional pattern of hearing is met. If the puretone threshold at each of the specified frequencies of 1000, 2000, 3000 and 4000 Hertz is 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 Hertz, the roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher roman numeral. 38 C.F.R. § 4.86(b). In a November 2012 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 40 45 32.5 LEFT 25 30 45 50 37.5 Speech audiometry revealed speech recognition of 95% in the right ear, and 100% in the left ear. In a March 2013 private audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 30 30 27.5 LEFT 25 30 30 35 30 This examination did not include Maryland CNC speech recognition testing, and as noted above, the provider failed to respond to VA’s requests for clarification. In an October 2013 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 20 30 30 25 LEFT 25 20 30 30 26.25 Speech audiometry revealed speech recognition of 96% bilaterally. In a February 2016 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 30 45 28.75 LEFT 25 40 45 50 40 Speech audiometry revealed speech recognition of 92% in the right ear, and 94% in the left ear. In a March 2016 private audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 55 55 55 60 56.25 LEFT 65 80 85 90 80 Although this examination did include results for a speech recognition threshold and word discrimination percentage, it is unclear whether they are based on Maryland CNC speech recognition testing, and as noted above, the provider failed to respond to VA’s requests for clarification. In an August 2016 private audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 30 30 30 30 LEFT 30 30 35 40 33.75 Although this examination did include results for a speech recognition threshold and speech discrimination percentage, it is unclear whether they are based on Maryland CNC speech recognition testing, and as noted above, the provider failed to respond to VA’s requests for clarification. In a January 2018 private audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 30 30 40 30 LEFT 25 35 35 35 32.5 Although this examination did include results for a word recognition score, it is unclear whether they are based on Maryland CNC speech recognition testing, and as noted above, the provider failed to respond to VA’s requests for clarification. A November 2018 private audiological examination was submitted with pure tone threshold average of 28 decibels in the right ear and 30 decibels in the left ear, and word recognition of 96% in the right ear and 100% in the left ear. It is unclear if the word recognition is based on Maryland CNC speech recognition testing. As noted above, the provider failed to respond to VA’s requests for clarification. In an October 2019 VA audiological examination, the examiner noted that the puretone responses were too inconsistent to test; however, Speech audiometry revealed speech recognition of 80% bilaterally. In a November 2019 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 20 30 35 26.25 LEFT 25 25 35 35 30 Speech audiometry revealed speech recognition of 88% in the right ear, and 84% in the left ear. In a December 2020 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 50 60 46.25 LEFT 35 50 60 75 55 Speech audiometry revealed speech recognition of 94% in the right ear, and 84% in the left ear. The November 2012 VA audiological findings correspond to a level I hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, this yields a 0 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. The October 2013 VA audiological findings correspond to a level I hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, this yields a 0 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. The February 2016 VA audiological findings correspond to a level I hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, this yields a 0 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. The November 2019 VA audiological findings correspond to a level II hearing in the right ear and level II hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, this yields a 0 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. The December 2020 VA audiological findings correspond to a level II hearing in the right ear and level III hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, this yields a 0 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. Although the Veteran provided private audiological examinations from March 2013, March and August 2016, and January and November 2018, they do not include speech discrimination results verified under Maryland CNC testing. See 38 C.F.R. § 4.85. Additionally, the January 2018 private audiological examination did not include the corresponding audiogram. The October 2019 VA audiological examination also did not include puretone threshold results. Accordingly, these results cannot be used to support a compensable evaluation. The Board notes that the VA audiological examination reports noted above each describe the effects of the Veteran’s hearing impairments on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran reported at the November 2012, October 2019, and December 2020 VA examinations that he has difficulty understanding conversations at home and at work. At the January 2018 Board hearing, the Veteran asserted that he has to turn the television on loud, and that when people talk, he has to read their lips. He also stated that he works in a high sound environment, and has to wear hearing protection, but cannot wear hearing aids while wearing the hearing protection. The Board finds the Veteran’s lay statements competent and credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by showing of an interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The evaluation of hearing loss, however, is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Consideration has also been given to whether there is an exceptional pattern of hearing impairment. However, the examination report does not show puretone threshold levels that were 55 decibels or higher at each of the four frequencies, i.e., at 1000, 2000, 3000 and 4000 Hertz, nor were they 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86(a), (b). Accordingly, the claim of entitlement to an initial compensable evaluation is denied. The Board has also considered whether referral for extraschedular consideration is indicated by the record. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1) (2018). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Veteran’s symptoms and functional impairment are contemplated by 38 C.F.R. § 4.85, Diagnostic Code 6100 and 38 C.F.R. § 4.86. Diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria. Although the criteria for hearing loss are strictly based on examination findings that are plugged into tables to determine the level of disability, built into this rating system is the recognition that the disability may impose functional impairment based on the Veteran’s ability to understand speech. Hence, the rating is based, in part, on speech recognition (i.e., the Veteran’s complaints of difficulty hearing his patients and coworkers). See 38 C.F.R. § 4.85(a) (“An examination for hearing impairment for VA purposes... must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids.”). Although the speech discrimination testing does not duplicate all listening situations, it offers consideration as to the level of functional impairment due to Veteran’s ability to understand speech by testing without the assistance of hearing aids. The criteria of Diagnostic Code 6100 were revised in 1987 with the goal of recognizing the impact of hearing loss in higher frequencies, and to provide a more accurate picture of true hearing impairment. See Evaluation of Hearing Loss, 52 Fed. Reg. 17,607 (May 11, 1987). As a result, VA changed its testing methods and, in conjunction with the Department of Medicine and Surgery, developed amendments to 38 C.F.R. § 4.85, 4.86a, 4.87a and Tables VI and VII. In particular, puretone averaging was to be accomplished using tone bursts at 1000, 2000, 3000 and 4000 Hertz, and speech recognition was to be measured using the Maryland CNC word lists which contained words with sounds in the 3000 and 4000 Hertz range. See Evaluation of Hearing Loss, 52 Fed. Reg. 17,607. Overall, the new schedule was intended to evaluate hearing loss based on a combination of puretone averages and speech discrimination, which was thought to provide for a more accurate representation of actual hearing impairment by recognizing that individuals with slight to moderate decibel loss as determined by puretone averaging may have significant impairment of speech and vice versa. Additionally, the rating schedule was revised to accommodate language difficulties and other factors which produced inconsistent speech audiometry scores, and to recognize exceptional patterns of hearing impairment. See Evaluation of Hearing Loss, 52 Fed. Reg. 17,607. The rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25,206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran’s Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran’s hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these Veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of Veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real-life industrial setting. See Schedule for Rating Disabilities; Diseases of the Ear and Other Sense Organs, 59 Fed. Reg. 17295 (April 12, 1994). Thus, the Board finds that functional impairment due to hearing loss that is compounded by difficulty hearing speech is a disability picture that is considered in the current schedular rating criteria. The Veteran’s description of an inability to hear and discriminate speech has been properly measured according to pure tone averages and speech discrimination. In short, the rating criteria reasonably describe the Veteran’s disability levels and symptomatology. Furthermore, if the Veteran’s hearing loss impacts the ordinary conditions of daily life, this is contemplated in the schedule of ratings and is not a proper consideration for an extraschedular analysis. Given that the average impairment in earning capacity is the standard, within the current rating schedule, many veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average as a result of their disability. Thun, 22 Vet. App. at 116. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2018) (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). As the evidence preponderates against the claim, there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to a TDIU VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). 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). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Service connection is in effect for the following disabilities: tinnitus at 10 percent and bilateral hearing loss at 0 percent. For the time period on appeal, the Veteran’s combined disability evaluation is 10 percent. Thus, the percentage requirements for a schedular TDIU are not met because although the Veteran has two or more service-connected disabilities, neither is rated as 40 percent disabling, with a combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16(a). After a review of the evidence of record, the Board finds that referral for consideration of entitlement to a TDIU on an extraschedular basis is not warranted. As noted above, the Veteran reported at the November 2012, October 2019, and December 2020 VA examinations that he has difficulty understanding conversations at home and at work. In a December 2012 statement, the Veteran asserted that due to his service-connected disabilities, he is unable to work, sleep, concentrate, or drive. On his May 2013 TDIU claim, he listed his places of recent employment, to include, the City of Seattle, King County Elections, Ste Michelle Wine Estates, and most recently, the United States Post Office up until April 2013. In a January 2020 statement, the Veteran asserted that he was still employed by the City of Seattle, but that he had been on extended medical leave since November 2018. In a February 2020 statement, the Veteran stated that he was on medical leave until June 2020. In a June 2020 letter, the Veteran’s private physician opined that the Veteran is unemployable due to pancreatic cancer, significant neuropathy in his hands, chronic fatigue, and that he needs surgery for a hernia, left shoulder pain, and cervical stenosis. The Board notes, however, that none of the conditions the Veteran’s private physician listed as causing him to become unemployable are service-connected. Based on the evidence, lay and medical, the Board finds that the Veteran’s service-connected bilateral hearing loss and tinnitus have not precluded him from securing or following a substantially gainful occupation. In this regard, although the Veteran’s symptoms result in some difficulty understanding conversations and watching television, there is no indication from the record that they cause the Veteran to be fully unable to perform job duties. Rather, the Veteran remains fully employed, but on medical leave due to unrelated medical conditions. Accordingly, the Board does not find that referral to the Director, Compensation Service is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.