Citation Nr: 21024894 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-13 346 DATE: April 26, 2021 ORDER For the period on appeal prior to January 21, 2016, a compensable evaluation for a bilateral hearing loss disability is denied. For the period on appeal from January 21, 2016 through December 8, 2019, an evaluation in excess of 20 percent for a bilateral hearing loss disability is denied. From December 9, 2019, an evaluation in excess of 60 percent for a bilateral hearing loss disability is denied. From March 4, 2019, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to January 21, 2016, the Veteran’s service-connected bilateral hearing loss disability was manifested by Level II hearing impairment in each ear, warranting a noncompensable evaluation. 2. On examination on January 21, 2016, the Veteran’s service-connected bilateral hearing loss disability was manifested by Level VI hearing impairment in the right ear and Level IV in the left ear, warranting an evaluation of 20 percent. 3. On examination on December 9, 2019, the Veteran’s service-connected bilateral hearing loss disability was manifested by Level IX hearing impairment in the right ear and Level VII in the left ear, warranting an evaluation of 60 percent. 4. The Veteran has been unable to secure or follow substantially gainful employment due to his service-connected disabilities from March 4, 2019. CONCLUSIONS OF LAW 1. Prior to January 21, 2016, the criteria for entitlement to compensable evaluation for a service-connected bilateral hearing loss disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86. 2. From January 21, 2016 to December 8, 2019, the criteria for entitlement to an evaluation in excess of 20 percent for a service-connected bilateral hearing loss disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86. 3. From December 9, 2019, the criteria for entitlement to an evaluation in excess of 60 percent for a service-connected bilateral hearing loss disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86. 4. From March 4, 2019, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1978 to February 1981, with additional service in the United States Army Reserve through December 1989. A Board hearing was held before the undersigned Veterans Law Judge in May 2019, and a transcript of the hearing is of record. 1. Increased Rating – Bilateral Hearing Loss Disability Historically, in a November 2019 decision, the Board remanded the issues of (1) entitlement to service connection for a left ear hearing loss disability, and (2) an increased evaluation for the Veteran’s service-connected right ear hearing loss disability. In a September 2020 decision, the Board granted entitlement to service connection for a left ear hearing loss disability, and remanded the issue of an increased evaluation for the Veteran’s right ear hearing loss disability for the agency of original jurisdiction (AOJ) to evaluate the Veteran’s hearing loss disability as a bilateral disability in the first instance. The AOJ has substantially complied with the Board’s remand directives, and the evidence of record is sufficient to proceed with a decision on the Veteran’s increased rating claim for a bilateral hearing loss disability. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Ratings for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenman v. Principi, 3 Vet. App. 345 (1992). As set out in the Rating Schedule, the results of controlled speech discrimination tests (Maryland CNC) and pure tone audiometry tests are charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Specifically, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately. Id. The United States Court of Appeals for Veterans Claims (Court) held that 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 considering the evidence of record for the period on appeal, a February 2014 VA audiological evaluation submitted by the Veteran explicitly noted that the CID W-22 speech discrimination test was utilized, and not the Maryland CNC test as required under 38 C.F.R. § 4.85. Therefore, the February 2014 VA audiological evaluation cannot be considered for VA rating purposes. The Veteran was afforded a VA hearing loss examination in July 2014. On the July 2014 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 55 80 85 LEFT 20 20 60 75 90 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 100 percent in the left ear. Adding the sums of the Hertz levels from 1000-4000 and dividing by four, results in an average pure tone threshold of 60 in the right ear and 61 in the left ear. The examiner noted speech recognition ability of 98 percent in the right ear and 100 percent in the left ear. The evidence does not indicate that the Veteran has an exceptional hearing pattern. 38 C.F.R. § 4.86(a), (b). Applying the average pure tone thresholds and speech recognition ability into Table VI reveals a Roman Numeral designation for hearing impairment of II in the right ear and left ear. 38 C.F.R. § 4.85. Entering the Numeral designation of II for each ear in Table VII results in a noncompensable evaluation under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. The Veteran described the functional effects caused by his hearing loss disability as an inability to understand his spouse on the telephone, and difficulty with his hearing aids falling out of his ears. A November 2015 private audiological evaluation associated with the claims file explicitly noted that the NU-6 speech discrimination test was utilized, and not the Maryland CNC test as required under 38 C.F.R. § 4.85. Therefore, the November 2015 audiological evaluation cannot be considered for VA rating purposes. The Veteran was afforded another VA hearing loss examination in January 2016. On the January 2016 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 60 85 95 LEFT 20 25 65 85 95 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 76 percent in the left ear. Adding the sums of the Hertz levels from 1000-4000 and dividing by four, results in an average pure tone threshold of 66 in the right ear and 68 in the left ear. The examiner noted speech recognition ability of 72 percent in the right ear and 76 percent in the left ear. The evidence does not indicate that the Veteran has an exceptional hearing pattern. 38 C.F.R. § 4.86(a), (b). Applying the average pure tone thresholds and speech recognition ability into Table VI reveals a Roman Numeral designation for hearing impairment of VI in the right ear and IV in the left ear. 38 C.F.R. § 4.85. Entering the Numeral designation of VI for the right ear and IV for the left ear in Table VII results in a 20 percent evaluation under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. The Veteran described the functional effects caused by his hearing loss disability as difficulty understanding conversation, trouble with background noise, and difficulty on the telephone. Pursuant to the November 2019 Board remand, the Veteran was afforded another VA hearing loss examination in December 2019. On the December 2019 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 85 95 100 LEFT 35 70 100 105+ 105+ Speech audiometry revealed speech recognition ability of 48 percent in the right ear and of 48 percent in the left ear. Adding the sums of the Hertz levels from 1000-4000 and dividing by four, results in an average pure tone threshold of 79 in the right ear and 95 in the left ear. The examiner noted speech recognition ability of 48 percent in the right ear and 48 percent in the left ear. The December 2019 audiological evaluation does not indicate that the Veteran has an exceptional hearing pattern for the right ear. 38 C.F.R. § 4.86(a), (b). Applying the average pure tone thresholds and speech recognition ability into Table VI reveals a Roman Numeral designation for hearing impairment of IX in the right ear. 38 C.F.R. § 4.85. The December 2019 audiological evaluation demonstrates the Veteran has an exceptional hearing pattern for the left ear. 38 C.F.R. § 4.86(a). However, applying Table VI or Table VIA reveals the same Roman Numeral designation for hearing impairment of IX in the left ear. Entering the Numeral designation of IX for the right ear and IX for the left ear in Table VII results in a 60 percent evaluation under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. The Veteran described the functional effects caused by his hearing loss disability as difficulty understanding conversation, difficulty understanding conversation on the telephone, and frequently needing to request communication be repeated. The Veteran most recently underwent a VA hearing loss examination in March 2020. On the March 2020 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 70 85 90 LEFT 45 55 75 90 90 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 80 percent in the left ear. Adding the sums of the Hertz levels from 1000-4000 and dividing by four, results in an average pure tone threshold of 70 in the right ear and 78 in the left ear. The examiner noted speech recognition ability of 64 percent in the right ear and 80 percent in the left ear. The March 2020 audiological evaluation does not indicate that the Veteran has an exceptional hearing pattern for the right ear. 38 C.F.R. § 4.86(a), (b). Applying the average pure tone thresholds and speech recognition ability into Table VI reveals a Roman Numeral designation for hearing impairment of VII in the right ear. 38 C.F.R. § 4.85. The March 2020 audiological evaluation again demonstrates the Veteran has an exceptional hearing pattern for the left ear. 38 C.F.R. § 4.86(a), (b). Applying Table VIA results in a higher Roman Numeral designation of VII for hearing impairment of the left ear. Entering the Numeral designation of VII for the right ear and VII for the left ear in Table VII results in a 40 percent evaluation under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. The Veteran described the functional effects caused by his hearing loss disability as difficulty understanding conversation, which often resulted in arguments with his spouse, and difficulty understanding conversation on the telephone. In this case, a compensable disability rating for the Veteran’s service-connected bilateral hearing loss disability is not warranted prior to January 21, 2016. Prior to January 21, 2016, the competent medical evidence of record that is sufficient for VA rating purposes demonstrates the Veteran’s bilateral hearing loss disability was manifested by hearing impairment warranting a noncompensable evaluation under 38 C.F.R. § 4.85, Table VII. From January 21, 2016 through December 8, 2019, the competent medical evidence of record demonstrates the Veteran’s bilateral hearing loss disability was manifested by hearing impairment warranting a 20 percent disability rating, but no higher. From December 9, 2019, the competent medical evidence of record demonstrates the Veteran’s bilateral hearing loss disability was manifested by hearing impairment, at worst, warranting a 60 percent disability rating. The Board observes that the March 2020 VA audiological evaluation demonstrated hearing impairment warranting a 40 percent evaluation. Despite the apparent fluctuation in hearing impairment demonstrated in March 2020, the Board resolves reasonable doubt in favor of the Veteran in finding that a 60 percent disability rating, but no higher, is warranted from December 9, 2019. While the Board in no way calls into question the effects of the Veteran’s hearing loss disability on his ability to hear conversations, sounds around him, and frequently requiring repetition of comments, the Court of Appeals for Veterans Claims has specifically held that the schedular criteria for rating hearing loss contemplates the functional effects of difficulty hearing and understanding speech, such as those reported by the Veteran. Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). To the extent that the Veteran contends that his hearing loss is more severe than the evaluations assigned over the period on appeal, the Veteran is competent to report symptoms of his hearing loss disability. However, he is not competent to report that his hearing acuity is of sufficient severity to warrant a higher evaluation under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As noted above, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenman, 3 Vet. App. at 349. In sum, prior to January 21, 2016, a compensable disability rating for the Veteran’s service-connected bilateral hearing loss disability is denied. From January 21, 2016 through December 8, 2019, an evaluation in excess of 20 percent for the Veteran’s service-connected bilateral hearing loss disability is denied. From December 9, 2019, an evaluation in excess of 60 percent for the Veteran’s service-connected bilateral hearing loss disability is denied. 2. TDIU In September 2020, the Board remanded the issue of entitlement to a TDIU as part and parcel of the Veteran’s July 2013 increased rating claim, which in relevant part included his service-connected hearing loss disability. See July 2013 VA Form 21-526b; see also Rice v. Shinseki, 22 Vet. App. 447 (2009). The AOJ has substantially complied with the Board’s remand directives, and the evidence of record is sufficient to proceed with a decision on the Veteran’s claim for entitlement to a TDIU. A total disability rating may be assigned where the schedular rating is less than total when the Veteran is, in the judgment of the rating agency, unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16. If the Veteran has only one service-connected disability, this disability shall be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more service-connected disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. In this case, the Veteran indicated he is prevented from securing or following any substantially gainful occupation due to his service-connected bilateral hearing loss disability and tinnitus, allergic rhinitis, and neck disability with associated radiculopathy of the bilateral upper extremities. See January 2020 VA Form 21-8940. As it pertains to the period on appeal, the Veteran is in receipt of a noncompensable evaluation for his service-connected bilateral hearing loss disability prior to January 21, 2016, a 20 percent evaluation from January 21, 2016 through December 8, 2019, and a 60 percent evaluation from December 9, 2019. The Veteran is in receipt of a 10 percent evaluation for his service-connected tinnitus from the date service connection was awarded on December 3, 2015. The Veteran is in receipt of a noncompensable evaluation for his service-connected allergic rhinitis prior to July 24, 2013, and 30 percent thereafter. The Veteran is in receipt of a 30 percent evaluation for his service-connected cervical spine disability from the date service connection was awarded on March 4, 2019. The Veteran is in receipt of a 20 percent evaluation for his service-connected radiculopathy of the right and left upper extremity, respectively, from the date service connection was awarded on March 4, 2019. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The phrase “unable to secure and follow a substantially gainful occupation” has an economic component and a noneconomic component. See Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The economic component considers the Veteran’s ability to secure and follow an occupation earning more than marginal income. See 38 C.F.R. § 4.16(a) (marginal employment shall not be considered substantially gainful employment). The noneconomic component considers such factors as the Veteran’s employment history, education, skill, training, physical ability, and mental ability. The Court of Appeals for Veterans Claims (Court) has held that the Veteran’s ability or inability to engage in substantial gainful activity has to be looked at in a practical manner, and the test is whether a particular job is realistically within the physical and mental capabilities of the Veteran. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one, but a factual determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In considering the economic component of the phrase “unable to secure and follow a substantially gainful occupation,” the Veteran reported his last substantially gainful employment was in February 2005. See January 2020 VA Form 21-4192. As such, the Veteran meets the economic criteria for consideration of entitlement to a TDIU. The Board has also considered the noneconomic component factors, including the Veteran’s employment history, education, skill, training, physical ability, and mental ability. Regarding education, the Veteran reported he had a high school equivalency credential (GED), as well as one year of college education. See March 2001 VA note; see also January 2020 VA Form 21-8940. The Veteran reported his employment history over the last 40 plus years included law enforcement, and transportation and delivery. See January 2020 VA Form 21-8940. With respect to his physical ability to engage in a substantially gainful occupation, the Veteran reported functional impairment due to his service-connected bilateral hearing loss disability and tinnitus includes difficulty hearing conversation, difficulty with telephone conversation, and his hearing aids fall out. See July 2014, January 2016, December 2019, and March 2020 VA examinations; see also April 2008 Social Security Administration Decision. In January 2020 correspondence, the Veteran reported he was precluded from commercial driving because he was unable to pass the hearing part of the Department of Transportation examination. The Veteran reported functional impairment due to his service-connected allergic rhinitis includes impaired sense of smell, and incapacitating episodes several times a year requiring him to miss work. See July 2014 VA examination; December 2015 Decision Review Officer hearing transcript. In January 2020 correspondence, the Veteran reported he had severe allergic rhinitis episodes and congestion several times a week that resulted in severe headaches and difficulty with concentration. See also April 2008 Social Security Administration Decision. In December 2017 correspondence, a private provider indicated the Veteran was limited from physical employment due to severe low back pain, thoracolumbar pain, and moderate to severe cervicothoracic pain. Additionally, the private provider reported the Veteran was limited from clerical work because he is unable to elevate both shoulders. The Board notes that the Veteran is not currently service-connected for a low back and/or thoracolumbar disability. Insofar as the Veteran’s inability to elevate both shoulders is related to his service-connected cervical spine disability and associated radiculopathy of the bilateral upper extremities, such evidence supports a finding that the Veteran would be limited from employment requiring the physical ability to work overhead. See also May 2019 and October 2020 VA cervical spine examination; see also April 2008 Social Security Administration Decision. In January 2020 correspondence, the Veteran reported he is unable to work in law enforcement or transportation because of the medication he is prescribed for his neck pain, and that he has difficulty lifting nearly any amount of weight. See also May 2020 correspondence (Veteran reported difficulty focusing on tasks due to pain medication). In a March 2020 VA cervical spine examination, the examiner indicated the Veteran was unable to turn his head to drive or climb ladders due to his neck disability. In considering the entire evidence of record, the Board resolves reasonable doubt in favor of the Veteran in finding that he is unable to follow or secure substantially gainful employment due to the overall functional impairment resulting from his service-connected disabilities. In this regard, the Veteran’s education and training has been specific to law enforcement and commercial driving, and the Veteran has an extensive employment history involving law enforcement activities and commercial transportation/delivery. Based on the limitations described above, the Board finds that law enforcement, transportation and delivery, and other physically demanding occupations, are not realistically within the Veteran’s physical capabilities due to his service-connected disabilities. Additionally, the Board finds the Veteran’s service-connected hearing loss disability and tinnitus, resulting in difficulty with communication, and service-connected allergic rhinitis, resulting in severe headaches and difficulty with concentration, would impair his ability to follow occupations with auditory requirements, including telephone communication, and the ability to concentrate or focus on a task. Resolving reasonable doubt in favor of the Veteran, such evidence supports a finding that the Veteran would also be limited from occupations that are not labor intensive. Although the issue of entitlement to a TDIU was raising as part and parcel of the Veteran’s July 2013 increased rating claim, which in relevant part included his service-connected hearing loss disability, the Board finds the award of a TDIU is not warranted prior to March 4, 2019. See Harper v. Wilkie, 30 Vet. App. 356 (2018). As discussed in the decision herein, the Board finds the award of a TDIU is warranted based on all of the Veteran’s service-connected disabilities, to specifically include his bilateral hearing loss disability, tinnitus, allergic rhinitis, and cervical spine disability. Given the Board’s finding that the Veteran’s cervical spine disability and associated radiculopathy of the bilateral upper extremities is part of the underlying basis on which a TDIU is warranted, and that the Veteran was not service-connected for a cervical spine disability until March 4, 2019, a TDIU prior to March 4, 2019 is denied. See Delrio v. Wilkie, 32 Vet. App. 232, 248 (2019) (the effective date of a TDIU cannot be earlier than the effective date of the award of service connection for the disability or disabilities upon which the award of a TDIU is based). Accordingly, entitlement to a TDIU is granted from March 4, 2019, but no earlier. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.