Citation Nr: 21027103 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-18 895 DATE: May 4, 2021 ORDER Entitlement to an initial disability rating in excess of 80 percent for bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The most probative evidence of record establishes that throughout the appeal period, the Veteran's bilateral hearing loss manifested by no worse than Level X hearing loss in the right ear and Level X in the left ear. 2. The Veteran's service-connected disabilities meet the schedular requirements for a TDIU and preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 80 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1968 to July 1970. Most recently, the Board of Veterans' Appeals (Board) remanded the matters on appeal in October 2020. As the remand directives have been completed, the matters have been properly returned to the Board for adjudication. 1. Entitlement to an initial disability rating in excess of 80 percent for bilateral hearing loss is denied. The Veteran maintains entitlement to an initial disability rating in excess of 80 percent for bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. § 4.85 (a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The rating criteria for hearing loss provide tables for combining the level of loss in the ears. Table VI is used to determine a Roman numeral designation for each ear based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. Table VIA designates a Roman numeral based on the average pure tone thresholds only. Table VI is typically used, but Table VIA may be used for exceptional patterns of hearing loss. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for impairment in both ears. 38 C.F.R. §§ 4.85, 4.86. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86 (b). The Veteran has an initial 80 percent rating for bilateral hearing loss, effective January 8, 2013. Following a review of the evidence of record, the Board finds that the severity of the Veteran's bilateral hearing loss disability does not warrant a higher rating now or at any point during the appeal period. The Veteran underwent a VA examination in November 2013 to evaluate his bilateral hearing loss disability. He reported that he could not understand spoken words at times and that he had trouble hearing at a distance. The following audiometry results were recorded: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 50 80 LEFT 10 15 15 30 75 The pure tone average for the right ear was 43 decibels (dB) and 34 dB for the left ear. Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 90 percent in the left ear. Using Table VI, the Veteran had Level II hearing loss in his right ear and Level II hearing loss in his left ear. Applying these results to Table VI, a 0 percent disability rating was warranted. In January 2015, the Veteran attended another VA examination to evaluate his bilateral hearing loss disability. He indicated that his understanding when in close proximity was alright, but that he could not hear well at a distance. He further noted that although he could hear, he had trouble understanding. The following audiometry results were recorded: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 50 80 LEFT 10 10 15 35 80 The pure tone average for the right ear was 39 dB and 35 for the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 90 percent in the left ear. Using Table VI, the Veteran had Level II hearing loss in his right ear and Level II hearing loss in his left ear. Applying these results to Table VI, a 0 percent disability rating was warranted. The Veteran attended a private audiological evaluation in October 2015. The private record presents audiometric test results in graph form. In this regard, the Board observes that in Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that it could not interpret the results of an audiogram because interpretation required a factual finding, which is not the role of the Court in the first instance. However, the Court implied that the Board, as the finder of fact, is empowered to make factual findings in the first instance. Thus, the Board has interpreted the results from that examination below: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 25 60 80 LEFT 20 25 40 50 75 The pure tone average for the right ear was 50 dB and 48 dB for the left ear. However, this report does not appear to include results specifically from a Maryland CNC speech discrimination test. Thus, it is generally inadequate for rating purposes. Another VA audiological examination was provided in January 2016. The Veteran reported extreme difficulty with communicating daily. He could not have a conversation unless he was in a closed area because it was too difficult to understand speech if there was any kind of background noise. He also stated that he could not hear his wife in the car and that he got upset in social situations because he could not engage in conversations. He further explained that at a recent New Year's Eve party, someone had yelled at him because he could not hear him properly, which was very upsetting for him. The following audiometric results were recorded: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 50 75 LEFT 10 10 20 40 75 The pure tone average for the right ear was 38 dB and 36 dB for the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 82 percent in the left ear. Using Table VI, the Veteran had Level II hearing loss in his right ear and Level III hearing loss in his left ear. Applying these results to Table VI, a 0 percent disability rating was warranted. At the Veteran's October 2019 VA examination, the following audiometry results were recorded: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 55 80 LEFT 15 20 35 55 80 The Veteran reported difficulty hearing in the presence of background noise, such as when he could not hear instruction when he used to work or when he could not understand lyrics to a song at a party while others could. He also indicated that he had difficulty understanding speech when driving because he was not facing the speaker. The Veteran stated that he could understand spoken speech when he was in quiet and smaller rooms. However, he reported attending a benefit and not being able to understand the spoken speech of the people at his table, and it made him want to walk away. The pure tone average for the right ear was 48 dB and 48 dB for the left ear. Speech audiometry testing could not be performed due to language difficulties, cognitive problems, inconsistent word recognition scores, etc. that made the combined use of pure tone average and word recognition scores inappropriate. Accordingly, 38 C.F.R. § 4.85 (c) dictates that in circumstances where, as here, speech recognition scores are inappropriate, disability ratings should be based on Table VIa, not Table VI. Applying Table VIa, the Veteran exhibited Level II hearing loss in the right ear and Level II hearing loss in the left ear. Applying these results to Table VI, a 0 percent disability rating was warranted. However, VA, in attempting to provide the best possible outcome for the Veteran, decided to determine the Veteran's disability rating by applying 0 percent speech recognition scores in its June 2020 rating decision. This decision resulted in Level X hearing loss in the Veteran's right ear and Level X hearing loss in the Veteran's left ear. Applied to Table VII, this resulted in an 80 percent disability rating which VA awarded the Veteran for the entire appeal period. The Veteran was most recently assessed in September 2020. He reported that it was difficult to have a conversation unless he was facing the other person and that it was impossible to have a conversation in background noise. He indicated that any activities that required speech communication had been difficult. He further reported difficulty with speech understanding in a quiet and especially in noisy environments. The following audiometry results were recorded: HERTZ 500 1000 2000 3000 4000 RIGHT 45 40 45 75 90 LEFT 40 45 50 70 90 The pure tone average for the right ear was 63 dB and 64 dB in the left ear. The examiner noted speech recognition scores of 0 percent in each ear but also noted that speech audiometry testing could not be performed due to language difficulties, cognitive problems, inconsistent word recognition scores, etc. that made the combined use of pure tone average and word recognition scores inappropriate. Again, the Board notes that in circumstances where, as here, speech recognition scores are inappropriate, disability ratings should be based on Table VIa, not Table VI. Applying Table VIa, the Veteran exhibited Level V hearing loss in the right ear and Level V hearing loss in the left ear. Applying these results to Table VI, a 20 percent disability rating was warranted. The Veteran has exhibited, at worst, Level X hearing loss in each ear at the October 2019 VA examination. There is no objective clinical evidence that supports a higher, 100 percent disability evaluation. The Board affords significant probative weight to the audiometric test results described above, as they were prepared by clinicians with medical expertise in the field of audiology and directly address the rating criteria for the Veteran's hearing loss disability. Accordingly, the Board finds that the competent medical evidence outweighs the Veteran's subjective lay reports of a more severe degree of disability. Finally, the Board notes that VA's Schedule for Rating Disabilities contemplates the problems reported by the Veteran at his VA examinations, and the Veteran's current 80 percent rating throughout the current period on appeal reflects this high-level of impairment and difficulty hearing. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that "the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech"). Accordingly, the Veteran's appeal for a higher rating for his service-connected bilateral hearing loss is denied. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence weighs against the claim. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a TDIU is granted. The Veteran maintains that his service-connected disabilities preclude him from securing or following a substantially gainful occupation. For the reasons described below, the Board agrees and TDIU is granted. 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 totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "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 (a)(1), 4.15. A TDIU may be assigned, if the schedular 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). For the purpose of one 60 percent disability, or one 40 percent disability in, the following will be considered as one disability: (1) disabilities of one or both upper or lower or one or both lower extremities, including the bilateral factor if applicable; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or, (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). For a veteran to prevail on a TDIU claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough. The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A high rating for a disability can be recognition that the impairment makes it difficult to obtain and keep employment. Id. Consideration may be given to the veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for the Federal Circuit held that applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Veteran has met the schedular requirements for a TDIU for the entire appeal period since January 8, 2013, at which time he was service-connected for bilateral hearing loss, rated as 80 percent disabling, posttraumatic stress disorder (PTSD), rated as 50 percent disabling, and tinnitus, rated as 10 percent disabling. The Veteran's total combined disability rating as of that date is 90 percent. In July 2014, the Veteran provided VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. He indicated that his service-connected PTSD and tinnitus specifically prevented him from securing or following any substantially gainful employment. The Veteran reported that he had a high school education with some additional training as a machinist and had been self-employed as a tire salesman from 1972 (two years post-separation) to January 1, 2014. He stated that he had become self-employed very soon after service because he had difficulty working with others and hearing properly. VA treatment records and examinations concerning the Veteran's service-connected bilateral hearing loss and tinnitus reflect his increasing difficulties with speech recognition. Lay statements from the Veteran's spouse and friends support these findings, as they detail his difficulties communicating, especially if a person is far away, not facing him, or if there is any background noise. At his October 2019 VA examination, the Veteran reported that when he was employed at Alcoa Aluminum shortly after service, he was not able to understand instruction when turning on a machine, and this nearly caused harm to his co-worker. VA treatment records and examinations concerning the Veteran's service-connected PTSD indicate symptoms of depression, anxiety, panic attacks occurring about weekly, chronic sleep impairment, mild memory loss characterized by difficulty remembering instructions and details of assignments, flattened affect, difficulty understanding complex commands, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. After a careful review of the evidence, the Board resolves all doubt in the Veteran's favor in finding that he is unable to maintain gainful employment as a result of his service-connected disabilities. The Veteran's work history reflects that he was the owner and proprietor of a tire sales business for over 40 years. He has no significant work experience outside of that occupation. His work as a tire salesman undoubtedly required the ability to communicate effectively with customers, employees, and vendors, an ability that would be hampered by his worsening bilateral hearing loss disability and intrusive tinnitus. Further, the psychiatric symptoms detailed above, specifically his memory loss characterized by difficulty remembering instructions and details of assignments and difficulty establishing and maintaining effective work and social relationships, would also adversely impact his ability to accomplish important tasks and work with others, both in his capacity as a business owner and as a salesman. The Board notes that the Veteran last worked full-time on January 1, 2014. Regarding the period from January 8, 2013 to January 1, 2014, the Veteran was employed full-time. While there is no evidence that the Veteran's employment was marginal, see July 2014 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Board finds that he did work in a protected or sheltered environment, as he was the sole owner and proprietor of his own business. Based on these factors, at the least, a reasonable doubt arises as to his employability, which must be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, the Board finds that for the entire appeal period, the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities and, as such, a TDIU is warranted. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.