Citation Nr: 21023458 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-46 274 DATE: April 20, 2021 ORDER Entitlement to an evaluation greater than 70 percent for bilateral hearing loss prior to December 23, 2020 is denied. Entitlement to individual unemployability from September 17, 2010 is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level VIII in the right ear and no worse than Level XI in the left ear prior to December 23, 2020. 2. The Veteran’s bilateral hearing loss prevents him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for bilateral hearing loss prior to December 23, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to individual unemployability from September 17, 2010 have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1967 to March 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). In the January 2021 rating decision, the Veteran was awarded a 100 percent rating for bilateral hearing loss with an effective date of December 23, 2020. The Veteran was also awarded an entitlement to individual employability, effective September 17, 2011. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to an evaluation greater than 70 percent for bilateral hearing loss prior to December 23, 2020 The Veteran seeks a higher rating for his bilateral hearing loss. The Veteran contends that his hearing loss is so severe that he is now eligible for a cochlear implant at the VA. He states that his hearing loss is near total. See March 2019 Statement in Support of the Claim. The Veteran also contends that his balance is off. The Veteran states that he is unable to hear people if they are 4 feet away, and if he is inside of a building with loud noise, and he indicated that he has to leave when this occurs, because of his inability to hear. The applicable rating period is from September 17, 2010, one year prior to the receipt of the claim, through the present. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (discussing the one-year “look-back” period for non-initial increased rating claims). The VA rating scheme for the evaluation of hearing loss provides ratings from noncompensable to 100 percent based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests which average puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85. The evaluation of hearing impairment applies a formula which is essentially a mechanical application of the VA Schedule for Rating Disabilities to numeric designations after audiology evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R.§ 4.85(a). Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level. Alternatively, Table VIA uses only the puretone averages to give each ear a numeric designation. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that veterans experience. 38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Additionally, 38 C.F.R. § 4.86(b) provides that if the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an evaluation can be based on either Table VI or Table VIA, whichever results in a higher numeric designation, and that designation will then be elevated to the next higher Roman numeral. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. If the use of the word recognition score is not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate, the use of Table VIa is warranted. The Veteran was afforded a VA examination in October 2011. Audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 65 85 95 90 84 LEFT 105+ 105+ 105+ 105+ 105 The average puretone threshold was 84 in the right ear and 105 in the left ear. Maryland CNC speech discrimination was 90 percent in the right ear, and the examiner noted that it could not be tested in the left ear. These scores correlate to a Roman Numeral IV for the right ear and Roman Numeral XI for the left ear under Table VI of 38 C.F.R. § 4.85, resulting in a 30 percent rating. The Board also considered provisions of 38 C.F.R. § 4.86, which addresses exceptional patterns of hearing impairment, specifically, that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. In this case, both of the Veteran’s ears meet the criteria for an exceptional pattern of hearing loss because the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. Thus, using the VIA Table results, the Veteran received an evaluation of VIII in the right ear and XI in the left ear and a 70 percent rating. The Veteran was afforded a VA examination in November 2013. Audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 65 85 95 95 85 LEFT 105+ 105+ 105+ 105+ 105 The average puretone threshold was 96 in the right ear and 105 in the left ear. Maryland CNC speech discrimination was 90 percent in the right ear, and the examiner noted that it could not be tested in the left ear. These scores correlate to a Roman Numeral IV for the right ear and Roman Numeral XI for the left ear under Table VI of 38 C.F.R. § 4.85, resulting in a 30 percent rating. The Board also considered provisions of 38 C.F.R. § 4.86, which addresses exceptional patterns of hearing impairment, specifically, that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. In this case, both of the Veteran’s ears meet the criteria for an exceptional pattern of hearing loss because the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) is 55 decibels or more. Thus, using the VIA Table results in the Veteran receiving an evaluation of VIII in the right ear and XI in the left ear and a 70 percent rating. In September 2019, the Veteran received a cochlear implant evaluation and was not deemed a candidate. In the November 2020 audiological hearing aid fitting note, the examiner indicated that the Veteran has been refit multiple times and that he is a potential cochlear implant candidate. However, the Veteran would like to try other options for hearing aids prior to receiving an evaluation for cochlear implants. In December 2020, the Veteran was afforded a VA examination. The audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 80 105 105 105 99 LEFT 105+ 105+ 105+ 105+ 105 The average puretone threshold was 99 in the right ear and 105 in the left ear. Maryland CNC speech discrimination was 34 percent in the right ear, and 0 percent in the left ear. These scores correlate to a Roman Numeral XI for the right ear and Roman Numeral XI for the left ear under Table VI of 38 C.F.R. § 4.85, resulting in a 100 percent rating. The Board acknowledges that the Veteran meets the criteria for a 100 percent rating under both Table VI and Table VIA. The Board notes that the RO awarded a 100 percent rating for the Veteran’s hearing loss from December 23, 2020. This is the maximum schedular evaluation under Diagnostic Code 6100 for hearing loss and extraschedular consideration has not been argued. In December 2020, the Veteran also underwent an examination for a balance disorder. The examiner opined that the Veteran does not have a balance disorder. As to the rationale, the examiner explained that there is no objective evidence to support a diagnosis of a balance disorder. In addition, the Veteran denies any episodes of slips, falls, or vertigo. The examiner stated that the “Veteran’s symptoms are subjective only. Current and available claims file is silent for balance disorders, except for one mention of positional disequilibrium. There is a relation to the service-connected hearing loss. Therefore, no diagnosis regarding balance disorder is warranted at this time.” The Veteran has argued that his hearing loss is more severe than was reflected by his assigned evaluations. Although the Veteran is competent to attest to his observations and laypeople may, in some circumstances, opine on questions of diagnosis and etiology, in this case, the Veteran is not competent to diagnose himself with a particular level of hearing impairment. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Specifically, the Veteran is competent to describe observable symptoms and impairments he experiences (e.g., diminished hearing). However, as a lay person, he is unable to provide competent evidence as to the audiometry or measured level of his hearing loss to support a higher disability rating. The Board acknowledges the Veteran’s complaints regarding the impact of his service-connected bilateral hearing loss on his daily activities. Specifically, that he hears whistling from his hearing aids, has trouble hearing, and has to go outside if there is loud noise. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are made. The Board also acknowledges that the Veteran contends that his balance is off due to his hearing loss. Secondary service connection requires evidence that a current, nonservice-connected disability was caused or, alternatively, aggravated beyond its natural progression, by a service-connected disability. 38 C.F.R. §§ 3.300(c), 3.310; Allen v. Brown, 7 Vet. App. 439 (1995); DeLisio v. Shinseki, 25 Vet. App. 45 (1993). However, the December 2020 examiner noted that the Veteran does not have a diagnosis for a balance disorder, thus he does not have a current disability and secondary service connection is unwarranted. There is no doubt as to the proper evaluations to assign, and thus no doubt to resolve in favor of the claimant. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA, VII, DC 6100. The Board is bound by applicable laws and regulations promulgated by the VA. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). Consideration of factors wholly outside the schedular rating criteria would constitute error as a matter of law. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In conclusion, the preponderance of the most probative evidence weighs against entitlement to a rating greater than 70 percent for bilateral hearing loss prior to December 23, 2020, or secondary service connection for a balance disorder. In reaching this conclusion, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the claim, the doctrine does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to individual unemployability prior to September 17, 2011 The Veteran contends that he has not been able to work since April 2010 when he retired. The Veteran contends that he retired because of his hearing, specifically, as a safety precaution for himself and his co-workers. He states that he is unable to communicate with anyone about anything of substance without the assistance of his wife. See May 2019 Statement in Support of Claim. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. “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,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran has been in receipt of a schedular 100 percent rating for bilateral hearing loss since December 23, 2020. In the January 2021 rating decision, the Veteran was awarded a TDIU with an effective date of September 17, 2011. The Veteran’s appeal for an earlier effective date for the grant of entitlement to a TDIU is part and parcel to the increased rating issue on appeal. Therefore, the applicable rating period is from September 17, 2010, one year prior to the receipt of the claim, through the present. See Francisco, 7 Vet. App. at 55. (discussing the one-year “look-back” period for non-initial increased rating claims). The Veteran is service connected for bilateral hearing loss rated as 70 percent disabling prior to December 23, 2020, and as 100 percent disabling from that date. Thus, the schedular percentage requirements for a TDIU were met throughout the entire appeal period. See 38 C.F.R. § 4.16(a). In December 2012 the Veteran submitted an application for increased compensation based on unemployability. The Veteran indicated that he stopped working in April 2010 because of his bilateral hearing loss. He indicated that he completed high school but did not obtain any further training or education. The Veteran explained that he has not worked since April 2010, because his hearing loss could put himself at risk for getting hurt, and his co-workers. He stated that he cannot hear anything and his work as a heavy equipment operator requires him to be able to hear. He has not had any earned income since his retirement. The Veteran states that he cannot communicate with “anyone about anything” without the assistance of his wife. He states he is always at risk of getting hurt from not hearing some sort of hazard, coming from behind him or to his side. The Veteran states he also has balance issues that causes him to fall. See May 2019 statement. In an October 2013 audiological note, the Veteran reported being pleased with the volume and sound quality of the hearing aids he received. In the November 2013 VA examination, the examiner stated that the Veteran continued to be diagnosed with mixed hearing loss of the right ear and sensorineural hearing loss of the left ear. The Veteran’s hearing loss impacts ordinary conditions of life including work, due to his inability to hear or understand conversations in any listening situation without amplification. The Veteran wears bilateral hearing aids but still has difficulty understanding. In May 2019, the Veteran underwent a vocational assessment. The examiner noted that conventional “on-contract hearing aids” would not work, and the Veteran would have better results with “left to right Bicros hearing aids,” but they are not under contract. The examiner noted during her interview with the Veteran and the Veteran’s spouse that the Veteran had difficulty understanding the questions due to his hearing loss. The examiner stated that the Veteran’s skills were acquired by on-the-job training and were restricted to the construction field. He does not have any formalized education after high school. The Veteran reported that he had difficulty hearing and understanding questions and directions from his supervisors and job foreman. He was unable to work in any type of occupation since 2010 because of his chronic and severe hearing conditions. The examiner opined that the Veteran was unable to perform, or maintain any significantly gainful occupation, including any unskilled work since April 2010. In view of the above, the Board finds that the Veteran’s service-connected bilateral hearing loss disability renders him unable to secure or follow a substantially gainful occupation. The Board acknowledges that the Veteran was awarded a TDIU with an effective date based on the date he submitted the claim. However, the Board concludes that the Veteran’s bilateral hearing loss should be awarded based on the one-year lookback period because the Veteran was unable to secure substantial employment after he retired from construction work. The Veteran had difficulty understanding instructions because of his bilateral hearing loss, which would make it difficult for the Veteran to receive training and/or instruction from a new job. Thus, the Veteran should receive a TDIU with an effective date of September 17, 2010, the year prior to the Veteran filing the claim. Saudiee Brown Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.