Citation Nr: 21028501 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-34 937A DATE: May 11, 2021 ORDER A rating in excess of 40 percent prior to January 22, 2021, and in excess of 50 percent thereafter for bilateral hearing loss is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the appeal period prior to January 22, 2021, the Veteran had no worse than Level VI hearing in the right ear and Level VIII hearing in the left ear. 2. As of January 22, 2021, the Veteran had no worse than Level IX hearing in the right ear and Level VIII hearing in the left ear. 3. For the periods on appeal where he was not incarcerated, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent prior to January 22, 2021, and in excess of 50 percent thereafter for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107, 5313; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1971 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In July 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is associated with the record. In June 2020, the Board remanded the case for additional development. While on remand, in a January 2021 rating decision, the Agency of Original Jurisdiction (AOJ) awarded an increased rating of 50 percent for bilateral hearing loss, effective January 22, 2021. As higher ratings are available for such disability, and the Veteran is presumed to be seeking the maximum available benefit for a disability, his claim for higher ratings remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The case now returns for further appellate review. 1. Entitlement to a rating in excess of 40 percent prior to January 22, 2021, and in excess of 50 percent thereafter for bilateral hearing loss. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board stems from the Veteran's September 30, 2014, claim, for an increased rating for bilateral hearing loss plus the one-year look back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Such disability has been rated as 40 percent disabling for the appeal period prior to January 22, 2021, and 50 percent thereafter pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. Ratings of 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. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 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(a). In the latter case, 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 Roman numeral. 38 C.F.R. § 4.86(b). Turning to the evidence of record, VA treatment records reveal that the Veteran underwent an audiology consult for hearing aids in September 2014. At the time, he reported that he was only able to pass Department of Transportation (DOT) test to continue working as a truck driver with the use of hearing aids. At the time, audiometric testing revealed hearing within normal limits from 250 to 750 Hertz and a mild sloping to profound sensorineural hearing loss from 1000 to 8000 Hertz with poor word recognition ability at 64 percent in the right ear. Audiometric testing revealed hearing within normal limits from 250 to 1000 Hertz and a mild sloping to profound sensorineural hearing loss from 1500 to 8000 Hertz with fair word recognition ability at 76 percent in the left ear. In February 2015, the Veteran underwent a VA audiological examination, at which time he reported that people must repeat words often for him because he cannot hear them well and he must use visual cues to understand speech. He also reported that he can only pass a "5 foot whisper test" while wearing hearing aids, which is required to maintain his license and continue employment as a truck driver. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 45, 85, 90, and 95 in the right ear and were 25, 80, 100, and 95 in the left ear, respectively. The pure tone threshold average in the right ear was 78.75 decibels and the average in the left ear was 75 decibels. Word recognition testing revealed speech recognition ability of 72 percent in the right ear and 64 percent in the left ear. The results from the left ear demonstrates an exceptional pattern of hearing loss and, as such, the Board will apply the results to Table VI and Table VIA, utilizing the more favorable result. Under Table VI, these audiometry test results equate to Level VI hearing in the right ear and Level VII in the left ear, the latter of which is elevated to Level VIII. 38 C.F.R. § 4.85. Under Table VIA, these audiometry test results equate to Level VI in the left ear, which is elevated to Level VII. Id. Thus, the application of Table VI results in a higher numeral for the left ear. Applying the percentage ratings for hearing impairment found in Table VII, Level VI hearing in one hear and Level VIII hearing in the other ear results in a 40 percent rating. At the July 2018 Board hearing, the Veteran testified that his hearing had significantly worsened since the February 2015 VA examination, he could hardly hear out of his right ear, and had extremely high frequency hearing loss in his left ear. He further indicated that he had difficulty discerning words and his spouse told him that he hears one out of every three words. Additionally, he reported that his disability had gotten to the point that he was unable to pass the DOT physical without a hearing aid but he could not wear it because it caused too much noise. Pursuant to the June 2020 remand, the Veteran was afforded a VA examination in January 2021, which is the basis for his 50 percent rating. At the time, he reported difficulty hearing in all situations, he has to use a speaker phone to communicate on phone calls, and he only hears about every third word during conversations. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 45, 95, 100, and 105+, in the right ear and were 40, 85, 105+, and 105 in the left ear. The pure tone threshold average in the right ear was 86.25 decibels and the average in the left ear was 83.75 decibels. No exceptional pattern of hearing loss was shown. Word recognition testing revealed speech recognition ability of 44 percent in the right ear and 56 percent in the left ear. These audiometric test results equated to Level IX hearing in the right ear and Level VIII in the left ear, which equate to a 50 percent rating. Based on the foregoing, the Board finds that a rating in excess of 40 percent prior to January 22, 2021, and in excess of 50 percent thereafter for bilateral hearing loss is not warranted. In reaching such determination, the Board acknowledges the Veteran's belief that his bilateral hearing loss is more severe than currently evaluated. While he is competent to report symptoms capable of lay observation, such as difficulty hearing in all situations and difficulty discerning words, he is not competent to report that his hearing acuity is of sufficient severity to warrant a higher rating 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 possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Despite the foregoing, the Board acknowledges the Veteran's aforementioned reports of the difficulties associated with his bilateral hearing loss. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a higher evaluation are not met. See Lendenmann, supra. In this regard, in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims (Court) held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA's audiometric tests are designed to measure. The Veteran has not otherwise described functional effects that are considered exceptional, or that are not otherwise contemplated by the assigned evaluation. Id. Thus, his complete disability picture is compensated under the rating schedule. The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the increased rating claim adjudicated herein. Doucette, supra. Therefore, the Board finds that a rating in excess of 40 percent prior to January 22, 2021, and in excess of 50 percent thereafter for bilateral hearing loss is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit if the doubt doctrine is not applicable in the instant appeal and his increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities". Moreover, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The appeal period for the Veteran's claim beings on September 30, 2014, the date of his claim for an increased rating for bilateral hearing loss. See Rice, supra. As of such date, the Veteran is service connected for bilateral hearing loss, rated as 40 percent disabling, effective September 30, 2014, and rated 50 percent disabling, effective January 22, 2021; and peptic ulcer, rated as noncompensable for the entire appeal period. The Veterans combined disability rating is 40 percent as of September 30, 2014, and 50 percent disabling as of January 22, 2021. Therefore, at no time during the appeal period does the Veteran meet the schedular threshold criteria for a TDIU as defined in 38 C.F.R. § 4.16(a). However, even when the percentage requirements are not met, entitlement to a TDIU on an extra-schedular basis may nonetheless be granted in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As an initial matter, the Board notes that the Veteran was incarcerated from November 28, 2018 to March 18, 2018, and from October 7, 2019, to April 6, 2020, for a felony. Thus, such time periods are excluded in considering the Veteran's claim for a TDIU. 38 U.S.C. § 5313(c). Furthermore, as directed by the June 2020 remand, the AOJ requested that the Veteran complete and return an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) later that month; however, he did not do so. See Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Thus, the Board is unable to ascertain the exact dates the Veteran was employed in a less than substantially gainful occupation during the appeal period, exclusive of the time periods where he was incarcerated, and his complete education and work history. Nonetheless, it does appear that he has not worked at times during the appeal period as he reported at the July 2018 Board hearing that he used to be a truck driver, but was unable to maintain his commercial driving license due to his service-connected bilateral hearing loss and, as such, retired in 2015. Nonetheless, regardless of whether the Veteran was substantially gainfully employed during the appeal period when he was not incarcerated, the Board finds that his service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation consistent with his education and work history as currently known. As an initial matter, the Board notes that the Veteran does not claim, and the evidence does not show, that his service-connected peptic ulcer resulted in any functional impairment. Rather, he has claimed that he is unable to work due solely to his service-connected bilateral hearing loss. In this regard, as noted previously, he has reported that he was unable to pass the DOT physical without a hearing aid, but he could not wear it because it caused too much noise. Nonetheless, while the February 2015 and January 2021 VA examiners noted that the Veteran's bilateral hearing loss interfered with his ability to work in that he needs people to repeat words, uses visual cues to understand speech, has difficulty hearing in all situations, has to use a speaker phone to communicate on phone calls, and hears about every third word during conversations, he reported that he was still able to pass a "5 foot whisper test" while wearing hearing aids, which is required to maintain his license and continue employment as a truck driver. Further, while the Veteran reported that he could not wear the hearing aids as they caused too much noise, his VA treatment records reflect that he was indeed wearing hearing aids as recently as November 2020. Moreover, even if the Veteran is unable to maintain his commercial driver's license due to his hearing loss, he would still be able to be employed driving smaller vehicles, which is consistent with his work history as a truck driver. Finally, absent the Veteran's cooperation with the development of the instant claim, the Board is unable to further ascertain his ability to secure and maintain substantially gainful employment in light of his education and work history. Based on the foregoing, the Board finds that, while the Veteran's service-connected bilateral hearing loss results in some functional limitations, such disability, alone or in combination with his peptic ulcer, does not render him unable to secure and follow a substantially gainful occupation consistent with his education and work history. Consequently, as the preponderance of the evidence is against the Veteran's claim, referral for extra-schedular consideration of a TDIU is not warranted and his appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.