Citation Nr: 21027721 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 13-28 085 DATE: May 6, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. For the period from March 24, 2009 to June 11, 2014, a total disability rating based on individual unemployability (TDIU) is granted on an extraschedular basis. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss has been manifested by impairment of auditory acuity no worse than Level II in both ears throughout the claim period. See September 2015 VA Examination; October 2019 VATR. 2. The Veteran has been unable to secure or maintain a substantially gainful occupation due to his service-connected chronic obstructive pulmonary disease (COPD) throughout the claim period. See, e.g., VATRs dated August 2002, April 2009 (reflecting pulmonary function test (PFT) results warranting a 60 percent rating); May 2010 TDIU Application (Veteran reported his COPD had prevented him from working since 1995). CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 2. The criteria for a TDIU on an extraschedular basis from March 24, 2009 to June 11, 2014 are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from March 1970 to February 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. 1. An Initial Compensable Rating for Bilateral Hearing Loss Loss of hearing acuity is evaluated under 38 C.F.R. § 4.85, which establishes eleven auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran was afforded one VA examination with an audiogram during the claim period, in September 2015, which yielded the following puretone threshold findings and speech discrimination test results (the average puretone threshold for the frequencies 10004000 Hz is noted in bold at the far right): HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 35 45 33.75 LEFT 15 25 40 55 55 43.75 Speech Discrimination: Right 94%; Left 94% Applying these results to Table VI of 38 C.F.R. § 4.85 yields the following levels of hearing loss, and the corresponding rating under Table VII: Right Level I; Left Level I: 0 Percent Disability The Veteran also underwent audiometric testing at an October 2019 VA medical center appointment, yielding the following puretone threshold findings and speech discrimination test results: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 45 50 50 45 LEFT 35 35 40 50 45 42.5 Speech Discrimination: Right 96%; Left 100% Applying these results to Table VI of 38 C.F.R. § 4.85 yields the following levels of hearing loss, and the corresponding rating under Table VII: Right Level II; Left Level II: 0 Percent Disability There is no other audiometric evidence of record, and the Veteran has not reported that his hearing loss has worsened since the October 2019 audiometric testing. While the Board sympathizes with the Veteran's statements that his hearing loss makes communication difficult, his functional hearing loss was specifically reported and considered by the VA examiners. The difficulties described by the Veteran are specifically and adequately contemplated by the current schedular rating criteria. See Martinak v. Nicholson, 21 Vet. App. 477 (2007); see also Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (the ability to hear or understand speech or to hear other sounds in various contexts is measured by the VA's audiometric tests and contemplated by the schedular rating criteria). Because the aforementioned audiometric testing was valid, and the schedular rating criteria adequately contemplates the Veteran's symptomology, the objective evidence of record does not support a schedular rating in excess of 0 percent at any time throughout the claim period. Therefore, an initial compensable rating for bilateral hearing loss is not warranted. 2. Extraschedular TDIU Before June 11, 2014 The Veteran is in receipt of a TDIU from June 11, 2014, the date of his schedular eligibility. However, "[i]t is the established policy of the Department of Veterans Affairs 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(b). For this reason, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. Where this is warranted, the claim is first referred by the AOJ to the Director of the Compensation Service for extraschedular consideration. Here, the claim was referred to the Director of the Compensation Service in October 2020, following a June 2020 Board Remand. In an administrative review accompanying its referral, the AOJ recommended that entitlement to a TDIU on an extraschedular basis before June 11, 2014 be granted, because the Veteran's level of impairment due to his service-connected COPD was at least as severe before that date as after, and probably worse. The AOJ pointed to an August 2000 PFT, which yielded results warranting a 60 percent disability rating under DC 6604 (Chronic obstructive pulmonary disease). (The Veteran was in fact granted non-service connected pension at 60 percent from October 2003, evidently based on this PFT.) In contrast, later PFTs yielded results warranting only a 30 percent disability rating. See VATRs dated April 2013, April 2019. Notwithstanding the AOJ's recommendation, the Director of the Compensation Service issued an Advisory Opinion in December 2020 concluding that "the preponderance of the evidence does not show that the service-connected condition prohibits the Veteran from obtaining or maintaining gainful employment." However, although the opinion included a brief summary of some of the Veteran's respiratory impairment, it included no reasons or bases for its conclusion. Following referral to the Director of the Compensation Service, a TDIU may be assigned on an extraschedular basis where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. 38 C.F.R. § 4.16(b). Here, the Veteran's only service-connected disability for the period before June 11, 2014 is COPD. The central issue is whether the Veteran's service-connected COPD precluded him from securing and following a substantially gainful occupation during this period; in other words, whether the Veteran's service-connected COPD alone was of sufficient severity to produce unemployability, taking into consideration the Veteran's education, training, and special work experience, but not his age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence of record for the period before June 11, 2014 is sparse. The Veteran reported on a July 2015 TDIU application that he last worked as a bus driver from 1972 to 1978, and that he left this job due to disability (diabetes, neuropathy, and psychiatric disability). On a May 2010 TDIU application, the Veteran reported he did not leave his last job due to disability, but did not provide a work history. On both applications, the Veteran stated he had been too disabled to work since 1995, either due to COPD or to diabetes, neuropathy, and a psychiatric disability. Resolving all reasonable doubt in the Veteran's favor, and in light of the fact that there is no other evidence for the Veteran's work history for this period, the Board finds that regardless of whether the Veteran left his last job due to disability, he considered himself too disabled to work due to his COPD since 1995, as he reported on the May 2010 TDIU application. Moreover, there is strong medical evidence that the Veteran's COPD was in fact severely disabling before June 11, 2014. Besides the August 2000 PFT noted by the AOJ, PFTs in August 2002 and May 2010 also reflect findings warranting a 60 percent disability rating under DC 6604. Moreover, the record of the August 2002 PFT includes a note that the Veteran had "rather severe COPD for his age." Notwithstanding this medical evidence, there is no direct evidence of the functional impact of the Veteran's COPD during the relevant periodother than the Veteran's report that he has been too disabled to work due to his COPD since 1995. Still, absence of evidence is not evidence of absence, and the Board resolves all reasonable doubt in the Veteran's favor. See 38 C.F.R. § 4.3. Accordingly, the Board finds that the Veteran's COPD has prevented him from securing or maintaining a substantially gainful occupation since 1995. Therefore, a TDIU is warranted on an extraschedular basis from March 24, 2009, the effective date of the grant of service connection for the Veteran's COPD. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Timmerman, 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.