Citation Nr: 21030716 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 12-00 967 DATE: May 19, 2021 ORDER The reduction of the rating for bilateral hearing loss from 10 percent to zero percent disabling, effective May 18, 2010, was proper; the appeal is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) due to service-connected disability is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to January 6, 2021, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's hearing impairment in his right ear has not been worse than Level III and for his left ear worse than Level II and the evidence shows that the disability underwent an improvement under the ordinary conditions of daily life and work. 2. Resolving all doubt in the Veteran's favor, the record reasonably shows that the combination of the Veteran's service-connected disabilities precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for the reduction in the disability rating for hearing loss from 10 percent disabling to 0 percent, effective May 18, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. 2. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1975 to November 1979. Further, the record reflects he had additional service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in March 2018 and August 2020 and remanded for additional development. 1. Hearing loss Where a reduction in an evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or termination of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the AOJ must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must also be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. 38 C.F.R. § 3.105 (e), (i). The Veteran was notified in an August 2010 rating decision that VA was reducing the rating assigned for his hearing loss. The 10 percent rating for hearing loss was awarded May 2009 effective January 2009 and was in effect until May 2010. For a reduction to take place, the evidence must show that there was actually an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155; 38 C.F.R. § 3.105(e). A rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown, 5 Vet. App. at 421; see also Stern v. McDonough 2021 Vet. App. at 677. Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. "[T]he Board must 'establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.'" Green v. Nicholson, 21 Vet. App. 512 (2006). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107(a); see also Brown; see also Stern. The Veteran seeks a compensable rating for his service-connected hearing loss under DC 6100. In support, the Veteran reported at his December 2017 BVA hearing that he had a private audiogram that indicates that his hearing loss disability satisfies the criteria for a compensable rating. See BVA hearing transcript (December 2017). An 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). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (b). Table VIA, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on pure tone threshold average. Table VIA is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c). "Pure-tone threshold average" as used in Tables VI and VIA is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those under § 4.86) to determine a Roman numeral designation from Tables VI and VIA. 38 C.F.R. § 4.85 (d). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having the better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85 (e) (2017). The Board finds that a rating higher than 0 percent is not warranted for his bilateral hearing loss. The Veteran reported that his bilateral hearing loss was more severe than shown in the May 2010, June 2013 and November 2015 VA examinations. See VA medical examinations (May 2010, June 2013 and November 2015). Thus, the Board remanded the issue in August 2020 and a VA medical evaluation was performed in March 2021. The VA examination shows the left ear with 88 percent speech discrimination. Decibel (dB)loss at the puretone threshold of 1000 Hertz (Hz) is 25, with a 40 dB loss at 2000 Hz, a 70 dB loss at 3000 Hz, and an 80 dB loss at 4000 Hz. The average decibel loss is 53.75 in the left ear. The right ear shows 88 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 1000 Hertz (Hz) is 30, with a 35 dB loss at 2000 Hz, an 80 dB loss at 3000 Hz, and a 90 dB loss at 4000 Hz. The average decibel loss is 58.75 in the right ear. Thus, the numeric designation for his right ear is III and for his left ear is II which warrants a 0 percent rating. However, the record does not show that the Veteran's hearing impairment in his right ear has been worse than Level III and for his left ear worse than Level II. Thus, a rating higher than 0 percent is not warranted. Although the Veteran is competent to report his observable hearing loss symptoms such as difficulty hearing, he is not competent to report that his hearing acuity was sufficient to warrant a higher evaluation under VA's tables for rating hearing loss disabilities. Such an opinion requires medical expertise and testing which has not been shown. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, as stated above, the assignment of disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, even considering the reports as to the effects of his hearing loss on his daily life, the relevant evidence shows that the criteria for a rating in excess of 0 percent are not met. In Stern v. McDonough, the Court reiterated that in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Additionally, a rating reduction must be supported by a preponderance of the evidence. Stern v. McDonough 2021 Vet. App. at 677. However, the Board finds that the May 2010, June 2013, November 2015 and March 2021 VA examinations show that the Veteran's hearing loss condition most nearly approximates a cero percent rating. Thus, the reduction is warranted. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for a rating higher than 0 percent and therefore it must be denied. 2. TDIU The Veteran last worked on November 2018, and he seeks a grant of a TDIU benefits. The Veteran reported that he is entitled to TDIU benefits due to him not being able to secure or follow any substantial gainful occupation since he became too disabled to work on November 2018. See Veteran's VA 21-8940 (August 2020). In support, the Veteran's stated that he could not work due to his service-connected disabilities. See BVA Hearing transcript (December 2017). Additionally, on January and March 2021 VA examiners stated that the Veteran's service-connected conditions impact his ability to work. See VA medical examination (January and March 2021). Indeed, the record shows the great limitations and modifications required for the Veteran to have the opportunity to have a possible sedentary job. Id. The Veteran completed four years of high school and CDL training. He worked as a driver. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. See 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system e.g. orthopedic are considered as one disability. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (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). The Veteran's service-connected disabilities satisfy the TDIU schedular criteria. Here, the Veteran has a 50 percent rating for PTSD effective January 2021, a 20 percent rating for right knee osteoarthritis effective January 2021, a 20 percent rating for left knee osteoarthritis effective January 2021, a 10 percent rating for index finger deformity effective December 2003, a 10 percent rating for right ankle sprain effective December 2003, a 10 percent rating for tinnitus effective December 2003, a non-compensable rating for hearing loss effective May 2010, and a non-compensable rating for left index finger scars effective June 2013. Thus, the Veteran's service-connected disabilities satisfy the schedular criteria set forth in 38 C.F.R. § 4.16(a) since January 6, 2021. After a thorough review of the record, the Board finds that the functional limitations imposed by the Veteran's service-connected conditions precludes him performance of substantially gainful employment. His record clearly indicates the severity of his service-connected disabilities, including medical treatments, surgical and non-surgical procedures, medications, and physical limitations. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As the Federal Circuit made clear in Geib, "VA [is] not required to obtain a single medical opinion that address[es] the impact of all service-connected disabilities on [the veteran's] ability to engage in substantially gainful employment." Id. After resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the evidence supports the conclusion that the Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment since January 6, 2021. The lay and medical evidence of record makes it at least as likely as not that the Veteran's service-connected conditions have precluded substantial gainful employment consistent with his general education and labor-intensive occupational experience. Based on the evidence, the Board, as a finder of fact, concludes that the evidence supports a finding that the functional impairment associated with the Veteran's service-connected disabilities is of such nature and severity as to preclude substantially gainful employment. Thus, the Board finds that the disabilities does render the Veteran unable to secure substantially gainful employment in this particular case. In light of the foregoing, the Board concludes that entitlement to TDIU, effective January 6, 2021, is warranted. REASONS FOR REMAND 3. TDIU The record shows that the Veteran's service-connected disabilities have significant impact on his ability to maintain employment. The evidence shows that the Veteran worked as a driver. See VA 21-8940 (August 2020). Additionally, in March 2017 and December 2019 VA examiners noted that the Veteran's service-connected left-hand condition impacts his ability to work. See VA medical examinations (March 2017 and December 2019). The rationale of the December 2019 VA examiner was that repetitive hand and fine-motor skill use of the left hand, to include heavy repetitive use, would not be possible with respect to this condition. See VA medical examination (December 2019). Further, on August 2017 another VA examiner noted that the Veteran's service-connected bilateral knee conditions impacts his ability to work. See VA medical examinations (August 2017). His combined disability evaluation, prior to January 6, 2021, is insufficient to meet the criteria for a schedular rating for TDIU. Although the Veteran's combined evaluation does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a), there is evidence that his service-connected disabilities negatively impacted his employability during this time. Therefore, the Veteran's TDIU appeal, prior to January 6, 2021, must be referred to the Director, Compensation Service, for consideration of an extraschedular TDIU as per 38 C.F.R. § 4.16 (b). See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that "the [Board] is not authorized to assign an extraschedular rating in the first instance under § 4.16(b)). The matter is REMANDED for the following action: 1. Notify the Veteran that he may submit medical evidence as well as lay statements from himself and from other individuals who have first-hand knowledge of the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this evidence. 2. Refer the Veteran's case to the Director, Compensation Service, for consideration of an extraschedular TDIU, prior to January 6, 2021, as per 38 C.F.R. § 4.16 (b). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.