Citation Nr: 21024444 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-24 104 DATE: April 22, 2021 ORDER Entitlement to a 10 percent rating, but no higher, for bilateral hearing loss is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. At all times during the pendency of the appeal, the audiometric test results obtained during examination by a VA audiologist correspond to a numeric designation of no greater than IV in the right ear and IV in the left ear. 2. The Veteran’s service-connected disabilities precluded substantially gainful employment. CONCLUSION OF LAW 1. The criteria for a 10 percent rating, but no higher, for bilateral hearing loss are met at all times during the appeal. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.186, Diagnostic Code 6100. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1969 to June 1971. In October 2018, the Board of Veterans’ Appeal (Board) remanded for further development the claim for an increased rating for bilateral hearing loss and a claim of service connection for a back disability. The Board also finds that the appeal raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As to the claim of service connection for a back disability, the Board finds this issue is no longer in appellate status because in an October 2020 rating decision the regional office (RO) granted the claim. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). As to the claim for an increased rating for bilateral hearing loss, the Board finds that the post-Remand development complied with the Remand because the September 2020 VA examination provided VA with medical evidence adequate to rate the Veteran’s bilateral hearing loss under all applicable rating criteria. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). The Board also finds that the post-Remand development complied with the Remand because while the appeal was in Remand status all identified and available VA and private treatment records were obtained and associated with the record. Id. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or obtain additional treatment records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). There is no basis to remand this issue. The Rating Claim The Veteran contends his hearing loss is worse than indicated by his current rating. Specifically, the Veteran has stated he thinks his hearing loss should be rated at 20 percent because of his exposure to constant firing, mortar rounds, and other weapons. Additionally, the Veteran has said he didn’t understand why he would get no rating even though VA recognized this is service connected. See May 2016 correspondence. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran currently has a noncompensable rating prior to September 3, 2020, and 10 percent thereafter for his bilateral hearing loss under C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100, Tables VI, VIA, and VII of VA’s rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. The Court has held that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Simply stated, this means that while the Veteran may have hearing problems (this fact is not in dispute), whether he has hearing loss warranting compensation is based on certain objective criteria. The only question is the degree of disability. The Veteran had examination for his hearing loss in March 2013. The Veteran’s speech discrimination score in his left ear was 90 percent and his right ear was 92. The Veteran’s puretone thresholds were as follows: Hertz 1000 2000 3000 4000 Right Ear 35 30 35 80 Left Ear 35 40 50 65 This results in an average of 45 dB in the Veteran’s right ear and an average of 48 in the Veteran’s left ear. In accordance with the October 2018 Board remand directives, the Veteran had examination for his hearing loss in September 2020. The Veteran’s speech discrimination score in his left ear was 80 percent and 78 in his right ear. The Veteran’s puretone thresholds were as follows: Hertz 1000 2000 3000 4000 Right Ear 50 50 70 75 Left Ear 50 50 55 65 This results in an average of 62 dB in the Veteran’s right ear and an average of 55 in the Veteran’s left ear. Initially, the Board finds that the Veteran should not be penalized by the fact that while his appeal was pending since 2013, the regional office (RO) waiting five years to provide him with another VA examination despite his claims of worsening symptoms. Moreover, the Court has held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, when considering the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture and when resolving all reasonable doubt in his favor, the Board finds that the most probative evidence of record are the above VA examinations that show with application to 38 C.F.R. § 4.85, Table VI, Table VII, the Veteran’s right ear hearing loss, at its worst, is assigned a numeric designation of IV and the left ear hearing loss is assigned a numeric designation of IV. See VA examination dated in September 2020. These test scores show that the Veteran meets the criteria for a 10 percent rating, but no higher for his bilateral hearing loss at all times during the pendency. Therefore, the Board finds that the claim for a 10 percent rating, but no higher, for his service-connected bilateral hearing loss is granted under Table VII at all times during the pendency. See 38 C.F.R. § 4.85, Diagnostic Code 6100; Fenderson, supra; Hart, supra; Tatum, supra. In reaching the above conclusion, the Board has not overlooked 38 C.F.R. § 4.86(a) and (b). However, because at the above examinations the Veteran did not have thresholds of 55 decibels or more at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz) nor have thresholds of 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz, the Board finds that they are not for application at all times during the pendency. Fenderson, supra; Hart, supra. Lastly, the Board wishes to address the Veteran’s contention that he believes his hearing warrants a higher, 20 percent, rating due to the noise he was exposed to and that he doesn’t understand why he would be service-connected for a disability only to have it be rated as noncompensable. The fact that the Veteran’s hearing loss is not rated as high as he would like it to be does not mean the Board does not believe he was exposed to excessive noise while in service. The fact that he is service-connected for this disability is evidence that VA believes he was exposed to such noise. However, the determination of the ratings for hearing loss is, as discussed above, based on a mechanical application of hearing loss decibel readings and other objective testing. Thus, while the Veteran may understandably feel his hearing loss is worse than indicated by his current ratings, the rating is based on these objective tests. The TDIU Claim As noted above, the record raises a claim for a TDIU because the Veteran claims, in substance, that his service-connected disabilities prevent him from working. See Rice, supra. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The record shows that the Veteran is service-connected for the following disabilities: • posttraumatic stress disorder (PTSD) is rated as 10 percent disabling from June 26, 2012, and 50 percent disabling from August 1, 2019; • Diabetes rated as 20 percent disabling; • Bilateral upper extremity neuropathy each rated as 20 percent disabling; • Bilateral lower extremity neuropathy each rated as 20 percent disabling; • A back disability rated as 10 percent disabling; • Tinnitus rated as 10 percent disabling; • Bilateral hearing loss rated as 10 percent disabling; and • A bilateral leg disability each rated as noncompensable. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a) because he has one disability rated as 40 percent or higher and he has a combined rating of 70 percent or higher. The next question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, while the record does not contain a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), the Board can piece together the following employment, education, and training history. Specifically, a review of the record on appeal shows that the Veteran last worked in approximately 2012 after working for the same company in the oil industry in multiple jobs for 31 years. See VA examinations dated in March 2013, January 2015, February 2015, August 2019, December 2019, January 2020, and September 2020. As to his education, the record shows that the Veteran has a high school education. As to the Veteran’s being able to work performing jobs that require sedentary employment and non-sedentary employment, including his past employment in the oil industry as well as other possible employment that could make use of his work experience and high school education, the Board finds that the medical records show that the problems caused by his service-connected PTSD, diabetes, bilateral upper extremity neuropathy, bilateral lower extremity neuropathy, back disability, tinnitus, bilateral hearing loss, and bilateral leg disability adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and interact effectively with co-workers and/or customers. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected PTSD, diabetes, bilateral upper extremity neuropathy, bilateral lower extremity neuropathy, back disability, tinnitus, bilateral hearing loss, and bilateral leg disability would make it dangerous for the Veteran and his co-workers for him to work in most non-sedentary employments. Id. Similarly, the Board finds that that the problems caused his service-connected PTSD, bilateral upper extremity neuropathy, bilateral lower extremity neuropathy, back disability, tinnitus, and bilateral hearing loss would make it very difficult to learn the new skills needed to work in most sedentary employments and thereafter interact with his co-workers as well as any customers and carry out the duties required by such employment. Id. Given the above, the Board finds that the Veteran’s service-connected disabilities prevent him from securing or following a “substantially gainful” occupation given his prior vocational history, work experience, and the impact his service-connected PTSD, diabetes, bilateral upper extremity neuropathy, bilateral lower extremity neuropathy, back disability, tinnitus, bilateral hearing loss, and bilateral leg disability have on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment in the oil industry, because of the problems they would cause in any work environment. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). (Continued on the next page)   In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us except to note that the Veteran has been in receipt of a combined 100 percent disability rating since December 9, 2019. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.