Citation Nr: 21026501 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-01 800 DATE: May 3, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to December 30, 2020 and in excess of 10 percent thereafter is denied. Entitlement to a total disability individual unemployability (TDIU) prior to December 7, 2016, to include on an extraschedular basis is denied. FINDINGS OF FACT 1. Prior to December 30, 2020, the most probative evidence of record shows that the Veteran's service-connected bilateral hearing loss resulted in Level II hearing acuity in the right ear and level III hearing acuity in the left ear. 2. After December 30, 2020, the most probative evidence of record show the Veteran's service-connected bilateral hearing loss resulted in Level VI hearing acuity in the right ear and Level III hearing acuity in the left ear. 3. The evidence does not show that the Veteran was rendered unable to secure and follow substantially gainful employment due to his service-connected disabilities prior to December 7, 2016. CONCLUSIONS OF LAW 1. Prior to December 30, 2020, the criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86. 2. After December 30, 2020, the criteria for a disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86. 3. The criteria for entitlement to a TDIU due to service-connected disabilities prior to December 7, 2016, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to September 1970. These matters were previously and separately before the Board in July 2019, at which time they were separately remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a January 2021 and February 2021 supplemental statements of the case. The Board finds that VA has substantially complied with the July 2019 Board remands. Entitlement to an initial compensable rating for bilateral hearing loss prior to December 30, 2020 and in excess of 10 percent thereafter The Veteran maintains that he is entitled to an initial compensable rating for service-connected bilateral hearing loss prior to December 30, 2020 ans A March 2017 rating decision granted service connection for bilateral hearing loss and assigned a noncompensable evaluation effective December 7, 2016, the date VA received the Veteran's claim. A July 2019 Board decision remanded the Veteran's bilateral hearing loss claim for clarification of the findings of a prior examination and a new examination. During the pendency of the appeal, in a January 2021 rating decision, the Veteran's bilateral hearing loss was increased to 10 percent disabling effective December 30, 2020. As this rating does not constitute a full grant of benefits, the claim is still on appeal before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 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 Diagnostic Codes. 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. Hearing loss disabilities are rated by application of a mechanical process that is explained here. Initially, VA must determine the Roman numerical designation for the degree of hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85 (h), Table VI. Under Table VI, the vertical columns represent nine separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four frequencies and dividing that sum by four. The horizontal rows under Table VI represent nine separate ranges of speech discrimination percentages, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the vertical column appropriate for the calculated pure tone threshold average and the horizontal row appropriate for the demonstrated percentage of speech discrimination. 38 C.F.R. § 4.85(b). After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85(h), Table VII. Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the better ear) with the appropriate vertical column (which represents the Roman numerical designation for the poorer ear). 38 C.F.R. § 4.85(e). Importantly, VA regulation provides "[a]n 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 pure tone audiometry test. Examinations will be conducted without the use of hearing aids." 38 C.F.R. § 4.85(a). See also, Swain v. McDonald, 27 Vet. App. 219, 222 (2015) ("There is no dispute that § 4.85(a)...requires use of the Maryland CNC test to determine the degree of a veteran's hearing loss, unless the examiner certifies that use of the test is not appropriate."). Prior to December 30, 2020 The Veteran was afforded a VA audiological examination in January 2017. The examiner found puretone thresholds of 35, 50, 80, and 75 decibels in the right ear and puretone thresholds of 35, 45, 75, and 75 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 60 decibels in the right ear and 58 decibels in the left ear. Speech recognition ability was 98 percent in the right ear and 90 percent in the left ear. Applying these results to Table VI of the Rating Schedule reveals numeric designations of Level II for the right ear and Level III for the left ear. When hearing loss is Level II in one ear and Level III in the other, a 0 percent evaluation is assigned under Table VII of the Ratings Schedule. The Board underwent hearing testing for in October 2018 as part of ongoing treatment and retesting for hearing aid purposes. While the treatment notes provide decibel readings for each ear, no speech discrimination information was provided. In its remand in July 2019, the Board highlighted this issue and requested that additional information be provided regarding this particular examination and speech discrimination. The RO reached out to the provider who performed the October 2018 examination. In October 2020 correspondence, the provider noted that the testing performed two years earlier was marked as not adequate for rating purposes and did not contain Maryland CNC speech discrimination testing. Examinations for hearing impairment must include Maryland CNC speech discrimination tests. 38C.F.R. §4.85(a). Therefore, the Board finds the October 2018 audiological examination to be inadequate. The Board attaches probative weight to the medical records and clinical findings from the medical professionals who conducted audiological testing rather than to the Veteran's lay witness statements. Moreover, the assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained, and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a compensable disability rating is warranted for the Veteran's bilateral hearing loss at any time prior to December 30, 2020. To the extent that the Veteran contends that his bilateral hearing loss was more severe than reflected by his assigned disability rating prior to December 30, 2020, the Board observes that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as trouble hearing. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to state that his hearing acuity is of a severity sufficient to warrant a higher rating under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise and knowledge that he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (2006). After December 30, 2020 Following the July 2019 Board remand, the Veteran was afforded a VA audiological examination on December 30, 2020. The examiner found puretone thresholds of 55, 55, 95, and 90 decibels in the right ear and puretone thresholds of 50, 60, 80, and 85 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 74 decibels in the right ear and 69 decibels in the left ear. Speech recognition ability was 90 percent in the right ear and 84 percent in the left ear. Because puretone thresholds were 55 decibels or more in the right ear, the provisions 38 C.F.R. § 4.86(b) apply. Applying these results to Table VIA and Table VI of the Rating Schedule reveals numeric designations of Level VI for the right ear and Level III for the left ear. When hearing loss is Level VI in one ear and Level III in the other, a 10 percent evaluation is assigned under Table VII of the Ratings Schedule. To the extent that the Veteran contends that his bilateral hearing loss is more severe than reflected by his current disability rating, the Board observes that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as trouble hearing. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to state that his hearing acuity is of a severity sufficient to warrant a higher rating under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise and knowledge that he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (2006). The Board attaches probative weight to the medical records and clinical findings from the skilled medical professionals who conducted audiological testing rather than to the Veteran's lay witness statements. Moreover, the assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a disability rating in excess of 10 percent is warranted for the Veteran's bilateral hearing loss after December 30, 2020. In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Entitlement to a TDIU prior to December 7, 2016, to include on an extraschedular basis A June 2019 rating decision granted entitlement to a TDIU effective December 7, 2016. The Veteran contends that he is entitled to an earlier effective date for the TDIU award, to include on an extraschedular basis. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, 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). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, this disability shall be ratable at 60 percent or more, or if there are two or more 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. See 38 C.F.R. § 4.16 (a). Prior to December 7, 2016, the Veteran was service connected for: Post-traumatic stress disorder (PTSD), rated as 30 percent disabling effective July 23, 2010; and Coronary artery disease, rated as 10 percent disabling effective July 23, 2010; and His total disability rating prior to December 7, 2016 was 40 percent. None of the Veteran's disabilities were rated as 40 percent or more prior to that date. Therefore, the Board finds that the Veteran did not meet the schedular criteria for TDIU prior to December 7, 2016. See 38 C.F.R. § 4.16 (a). Thus, the claim of entitlement to TDIU on a schedular basis prior to that date must be denied. However, the Veteran may still be entitled to a TDIU on an extraschedular basis if his service-connected conditions resulted in an inability to obtain and maintain substantially gainful employment. See 38 C.F.R. § 4.16 (b). Thus, the question becomes whether this disability, in and of itself, precluded the Veteran from securing or following a substantially gainful occupation. The Board notes that the question of entitlement to a TDIU on an extra-schedular basis has already been adjudicated by the Director, VA Compensation Service, and therefore the Board has jurisdiction over the matter. See Bowling v. Principi, 15 Vet. App. 1 (2001). In a February 2021 advisory opinion, the Director of Compensation Service concluded the Veteran was not entitled to a TDIU, including on an extraschedular basis. The opinion found that the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented employment. The Veteran reported he was self-employed in construction and last worked in 2010. He has a high school education and completed two years of college. The evidence of record does not suggest that the Veteran is entitled to a TDIU on an extraschedular basis dubecause it does not show that he was precluded from securing or maintaining substantially gainful employment as a result of service-connected disabilities alone. The case was referred for consideration to the Director, Compensation Service, who found that an extraschedular TDIU should not be awarded. This finding does not suggest, in any way, that the Veteran did not have some occupational problems because of his service-connected conditions; if he did not have any problems, there would be no basis for any compensation. The only question is whether his service-connected GERD alone, caused him not to work. Accordingly, the Board finds that the criteria for a TDIU, including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.