Citation Nr: 21023318 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-11 836 DATE: April 20, 2021 ORDER A rating in excess of 10 percent for bilateral hearing loss prior to January 5, 2021, is denied. A rating in excess of 60 percent for bilateral hearing loss since January 5, 2021, is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran had active service from August 1964 to August 1965, August 1965 to April 1966, and April 1966 to January 1968. 2. Prior to January 5, 2021, bilateral hearing loss was manifested by no worse than Level III hearing acuity in the right ear and Level V hearing acuity in the left ear. 3. Since January 5, 2021, bilateral hearing loss has been manifested by no worse than Level VIII hearing acuity in the right ear and Level X hearing acuity in the left ear. 4. The Veteran is service connected for bilateral hearing loss at a rating of 60 percent, posttraumatic stress disorder (PTSD) at 50 percent, and tinnitus at 10 percent. His total combined disability rating is 80 percent. 5. The Veteran’s service-connected disabilities do not preclude him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bilateral hearing loss prior to January 5, 2021, have not been met. 38 U.S.C. §§ 1131, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.385, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code (DC) 6100, Tables VI, VII (2020). 2. The criteria for a rating in excess of 60 percent for bilateral hearing loss since January 5, 2021, have not been met. 38 U.S.C. §§ 1131, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.385, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, DC 6100, Tables VI, VII (2020). 3. The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings for Hearing Loss Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation using Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Prior to January 1, 2021 Turning to the medical evidence, in a January 2018 audiological examination, the pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 65 80 80 LEFT 20 50 85 90 90 The average pure tone threshold was 65 in the right ear, and 78.75 in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 80 percent in the left ear. Applying Table VII to the test findings results in numerical designations of Level III in the right ear and Level V in the left ear, which equates to a 10 percent rating. Next, a February 2019 private examination reflected average pure tone thresholds of 62.5 in the right ear, and 70 in the left ear. The examiner did not use the Maryland CNC word list for purposes of speech discrimination testing. As such, the speech discrimination scores cannot be used for rating purposes. Therefore, without the speech discrimination scores, this evidence does not support a rating in excess of 10 percent for bilateral hearing loss. Accordingly, the audiological evaluations do not support a rating in excess of 10 percent during this time period. Since January 5, 2021 The Regional Office granted a 60 percent rating for bilateral hearing loss, effective January 5, 2021, based on the results of a VA examination. Turning to the medical evidence, in a January 2021 audiological examination, the pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 90 90 95 LEFT 45 60 85 85 90 The average pure tone threshold was 81.25 in the right ear, and 82.50 in the left ear. Speech audiometry revealed speech recognition ability of 56 percent in the right ear and 36 percent in the left ear. Applying Table VII to the test findings results in numerical designations of Level VIII in the right ear and Level X in the left ear, which equates to a 60 percent rating. There are no other audiological examinations of record since January 5, 2021. As such, the assigned 60 percent rating accurately portrays the current severity of bilateral hearing loss and the medical evidence does not support an increased rating. Further, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this regard, the most recent examiner specifically noted the Veteran’s complaint that he had difficult comprehending speech and in large gatherings it was hard to listen or talk. In addition, the file contains his own statements regarding hearing loss. Therefore, the Board finds that no prejudice to the Veteran in that the functional effects of his hearing loss disability were adequately addressed by the examiner and are sufficient for the Board to consider and find that referral for an extra-schedular rating is not warranted under 38 C.F.R. § 3.321(b). The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s bilateral hearing loss has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by bilateral hearing loss and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is currently service-connected for bilateral hearing loss at 60 percent, PTSD at 50 percent, and tinnitus at 10 percent. His combined rating is 80 percent. As such, he meets the requirements for a schedular TDIU under 38 C.F.R. § 4.16(a). In addition to the service-connected disabilities, the Veteran has also indicated that other disorders, for which he is not service-connected, have prevented him from obtaining substantially gainful employment. On the November 2018 application for TDIU, he noted that PTSD, bilateral hearing loss, loss of sight, a mild stroke, neuropathy, chronic liver failure, insomnia, Parkinson-like symptoms, and chronic joint pain prevented him from working. Further, during the July 2020 Board hearing, the Veteran testified that he stopped working at age 61 when he was diagnosed with viral meningoencephalitis, which kept him bedridden for approximately 3 years. After recovering, he contends that he was unable to maintain employment and retired. As such, the evidence shows that several nonservice-connected disabilities have also contributed to the Veteran’s unemployment. These nonservice-connected disorders cannot be considered for the purposes of TDIU. As for educational history, the Veteran completed four years of college and received an associate degree in liberal arts and a bachelor’s degree in business. Throughout his career, he worked various sales jobs, with his last period of employment ending in approximately 2008. While he has been unemployed throughout the period on appeal, the record reflects that he has volunteered at a local museum. Turning to the medical evidence, a January 2018 examiner reflected that symptoms of PTSD caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. As part of the relevant occupational and educational history, the examiner noted that the Veteran worked until the age of 62 when he fell ill with meningitis for 3 years. He also noted that the Veteran returned to work for around a year after 2006 before retiring. During the January 2018 examination, the physician noted symptoms of anxiety, chronic sleep impairment, irritability, and social avoidance. The examiner also indicated that the Veteran was cooperative with no evidence of a thought disorder. Further, he displayed clear and unimpaired cognitive functions and average reasoning abilities and social judgment. This examiner did not find that the Veteran was unable to work due to symptoms of PTSD. Next, a January 2018 VA examiner found that symptoms of bilateral hearing loss impacted the Veteran’s ability to work as it made it difficult for him to follow conversations, even with hearing aids. Further, tinnitus affected the ability to sleep at night, which resulted in drowsiness. In addition, a January 2021 VA examiner noted that bilateral hearing loss made it difficult for the Veteran to comprehend speech, especially in large gatherings. The examiner also indicated that poor word recognition would cause difficulty understanding speech, even with the use of hearing aids. As such, he concluded that the Veteran’s ability for employment was limited to positions that did not require frequent verbal communication. In sum, the medical evidence does not support the claim that the Veteran’s service-connected disabilities alone render him unemployable. The evidence shows that PTSD results in irritability, anxiety, sleep impairment, and social avoidance, while bilateral hearing loss results in difficulty understanding speech and communicating. Although the January 2021 VA examiner opined that bilateral hearing loss limited the ability to obtain a job that required verbal communication, he did not find that the Veteran was unemployable. As such, the medical evidence supports the conclusion that the Veteran would be employable in a job that did not require significant verbal communication. A reasonable interpretation of this finding is that the Veteran would be able to perform computer work, filing, or greeting, among other things. While the service-connected disabilities result in impairment, the record shows that additional impairment has been caused by multiple nonservice-connected disorders, such as the meningitis that initially caused him to stop working. As such, the medical evidence does not show that the Veteran is unable to obtain or maintain gainful employment due to service-connected disabilities. The Board has considered the lay statements and testimony of the Veteran regarding his capacity to work throughout the entire period on appeal. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran’s employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the impact of the Veteran’s service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective evidence of unemployability, and the appeal is denied. Finally, 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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kokolas, 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.