Citation Nr: 21040323 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-38 237 DATE: July 3, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 9, 2019, is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran's bilateral hearing is manifested by hearing acuity of Level I in the right ear and Level VIII in the left ear. 2. The record evidence shows that, effective January 9, 2019, the Veteran is in receipt of a 100 percent disability rating and Special Monthly Compensation (SMC) which renders the issue of a TDIU moot as of that date. 3. The record evidence shows that, prior to January 9, 2019, the Veteran's service-connected disabilities, alone or in combination, do not preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for a TDIU prior to January 9, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a), 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to January 1970. This appeal comes before the Board of Veterans' Appeals (BVA) from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter for further development in November 2018. The Board finds that there was substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to a TDIU was raised during the pendency of this appeal in a June 2019 letter from a private physician. Where evidence of unemployability is submitted while an appeal from an assigned disability rating is pending, the determination of entitlement to a TDIU is "part and parcel" of the determination of the initial rating for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The TDIU claim was denied in September 2019 and July 2020 rating decisions. The Veteran was not required to appeal those rating decisions for the TDIU claim to remain in appellate status. See Harper v. Wilkie, 30 Vet. App. 356, 360-61 (2018). As such, the Board will address whether entitlement to a TDIU is warranted during the appeal period. The Board notes that, in October 2019, the Veteran attempted to opt-in to the modernized review system, also known as the Appeals Modernization Act (AMA), by filing a VA Form 20-0995, Supplemental Claim Application, and selecting the statement of the case (SOC) opt-in option. The attempted opt-in was untimely with respect to the August 2016 SOC. The appeal period begins on February 9, 2015, the date the original claim was filed. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). 1. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran contends that he is entitled to an initial compensable rating because his bilateral hearing loss more accurately represents that contemplated by a 30 or 40 percent rating. Additionally, he contends that his hearing loss has increased in severity during the pendency of the appeal. A December 2015 VA examination reveals that the Veteran reported having difficulty communicating on the phone, hearing in crowds, and hearing in one-on-one situations. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: December 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 35 40 70 53 100 LEFT 45 55 65 100 80 100 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. An August 2019 VA examination reveals that the Veteran reported having significant difficulty hearing others while in groups or at restaurants. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. at 447. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: August 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 40 55 80 53 100 LEFT 50 75 90 105+ 80 54 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level VIII in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level VIII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Carrollton VA audiometric evaluations from December 2014, October 2017, and July 2019 are inadequate for rating purposes under § 4.85(a) because the speech audiometry scores were based on the NU-6 (Northwestern University Auditory Test Number Six) test rather than the Maryland CNC test and there is no certification that the use of the speech discrimination test was not appropriate. 38 C.F.R. § 4.85(a). The Board observes that, in October 2017, the Veteran was noted to have "essentially stable hearing" as compared with the December 2014 evaluation. The July 2019 audiology evaluation noted "stable pure-tones" as compared with the October 2017 evaluation. Based on the evidence above, the Board finds that the criteria for an initial compensable rating for the service-connected bilateral hearing loss are not met at any time during the appeal period. The Board considered the Veteran's reports that he has increasing difficulty communicating on the phone, hearing in crowds and restaurants, and hearing in one-on-one situations. The Board also considered the June 2016 buddy statement asserting that the Veteran's hearing has become profoundly worse over the years prompting requests for him to lower his voice. The Board further considered the August 2016 buddy statement asserting that the Veteran does not hear the alarm clock, phone alerts or ringing, doorbells or knocking, conversations at normal volume or from other rooms, and listens to the television and speaks so loudly that it is bothersome to others. He is competent to report difficulty with his hearing and the lay witnesses are competent to report their observations of the manifestations of the hearing loss in daily life; however, 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 rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes due to his service-connected bilateral hearing loss is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). There has been no evidence identified or submitted to suggest he experiences other extraordinary symptoms such as dizziness, vertigo, or ear pain which are not contemplated by the rating schedule. Id. The Veteran's main complaint is reduced hearing acuity and clarity which is what is contemplated in the rating assigned based on the mechanical application of 38 C.F.R. § 4.85. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). He otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial compensable rating for his service-connected bilateral hearing loss at any time during the appeal period. In summary, the Board finds that the criteria for an initial compensable rating for bilateral hearing loss have not been met. 2. Entitlement to a TDIU prior to January 9, 2019 After a review of the evidence of record, the Board determines that a TDIU is not warranted prior to January 9, 2019. The Veteran contends his service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment since June 2012. The Board notes initially that service connection is in effect for prostate cancer with voiding dysfunction (100 percent disabling since January 9, 2019), generalized anxiety disorder (70 percent disabling since January 3, 2017), tinnitus (10 percent disabling since February 9, 2015), noncompensable bilateral hearing loss since February 9, 2015;,and noncompensable erectile dysfunction since January 9, 2019. The combined disability rating is 10 percent from February 9, 2015, 70 percent from January 3, 2107, and 100 percent from January 9, 2019. See 38 C.F.R. § 4.25, Combined Ratings Table. Therefore, the Veteran meets the criteria for schedular consideration of entitlement to a TDIU beginning January 3, 2017. 38 C.F.R. § 4.16(a). As an initial matter, the Board notes that the Veteran has been in receipt of a 100 percent disability rating for prostate cancer and SMC under 38 U.S.C. §§ 1114(k), 1114(s) since January 9, 2019. A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). When VA has found a Veteran to be totally disabled as a result of a particular service-connected disability pursuant to the rating schedule, there is no need and no authority to rate the Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU for one disability moot where 100 percent schedular rating was awarded for another disability for the same period); compare Buie v. Shinseki, 24 Vet. App. 242 (2011) (finding a combined 100 percent disability rating based on multiple disabilities, each rated less than 100 percent disabling, does not render the issue of TDIU moot for any underlying disability that alone results in unemployability and triggers entitlement to SMC benefits not available based on the combined 100 percent rating). Because the Veteran is receiving the maximum benefits allowed by law since January 9, 2019, the issue of entitlement to a TDIU effective January 9, 2019, is not for consideration. Although the Veteran meets the schedular criteria for a TDIU as of January 3, 2017, the Board finds no indication that his service-connected disabilities prevented him from securing or following a substantially gainful employment on a factual basis prior to January 9, 2019. See 38 C.F.R. § 4.16(a). The record evidence shows the Veteran is a high school graduate. He attended some college courses before entering the military. He denied receiving any education or training since June 2012. After leaving the military, he worked for the same employer in the textile sales industry for thirty years, retiring as a program manager in July 2010, earning $125,000 per year. He also was a professional golfer for ten years and taught golf in a country club as the head professional. VA treatment records show he still was teaching golf at least as recently as September 2016. He resumed teaching golf in approximately September 2018 after taking four months off due to a non-service-connected shoulder injury and continued teaching golf until at least January 2019. The Board notes that he did not disclose his golf instruction on his compensation applications or provide any information about that employment despite being asked to do so by the RO. He also denied making any job search efforts since he retired. The Board first will consider whether the service-connected bilateral hearing loss alone renders him unemployable. VA audiological examination reports from December 2015 and August 2019 note that his hearing loss causes difficulty communicating on the phone, hearing in crowds, and hearing in one-on-one situations. Additionally, his tinnitus makes it difficult for him to fall sleep and is distracting during the day. In March 2020, a VA examiner opined that the Veteran's bilateral hearing loss and tinnitus were not barriers to a wide range of employment settings, noting that persons with his level of hearing loss and tinnitus and even profoundly deaf individuals function well in many occupations. The examiner found, however, that his hearing loss and tinnitus may cause difficulty in vocations requiring him to work in noisy environments, vocations requiring him to often use non-face-to-face communications equipment such as phones, speakers, or intercoms, or in vocations requiring a great deal of attention to high pitched sounds such as monitoring medical equipment or other "beeps or pings." In the absence of evidence to the contrary, the Board infers that the March 2020 VA opinion applies to the entire appeal period. The Board finds that none of the occupational limitations noted by the March 2020 VA examiner are features of a golf instructor vocation. Nor are they a feature of a management position in a typical office environment where managers have separate office space and speak to employees and co-workers face-to-face. He has not alleged any other physical or mental effects of his hearing loss or tinnitus impair his occupational ability. Indeed, private treatment records show he repeatedly denied changes in his hearing from 2012 to at least January 2019. Thus, the Board finds that the Veteran's bilateral hearing loss and tinnitus alone do not preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. In making this determination, the Board reviewed the June 2016 Buddy statement from a former co-worker and the August 2016 Buddy statement from his wife. Both witnesses are competent to offer their observations that his speaking volume was disruptive to others and he did not appear to hear routine sounds or conversations. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds no reason to question either witness's credibility. The March 2020 VA examiner considered the lay evidence of impairment offered by the Veteran's wife and rendered an opinion consistent with the impairments she raised. The co-worker's statement is not probative because it pertains to a period of time prior to the appeal period when the Veteran had no service-connected disabilities and was a full-time employee earning $125,000 per year notwithstanding any hearing difficulties he may have had at that time. The Board also considered a letter received in June 2019 from a private physician who opined that the Veteran was "presently and permanently in the future-disabled for any form of employment" due to significant hearing loss in both ears with tinnitus. The physician also attributed the Veteran's unemployability to a two-decade history of non-service-connected osteoarthritis. He did not differentiate between the service- and non-service-connected disabilities or opine as to when, how, or to what degree the Veteran's hearing loss and tinnitus affected his employability. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019) (finding medical examiners may provide evidence regarding functional and occupational impairment but whether a Veteran is able to "secure and follow a substantially gainful occupation" is a legal determination); Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (finding entitlement to a TDIU is a legal determination and not a medical one). As such, the June 2019 private opinion is not probative. Next, the Board will consider whether the Veteran's ability to secure and follow a substantially gainful occupation was impacted by the mental and physical effects of his service-connected bilateral hearing loss, tinnitus, and anxiety disorder prior to January 9, 2019. To that end, a VA Audiology note from October 2017 shows the Veteran continued to teach golf, often doing so without his VA-issued hearing aids. An April 2019 VA Mental Health Progress Note shows that he gets nervous and jerks when playing golf in front of crowds. This did not prevent him from teaching golf during the appeal period. Private and VA treatment records show that he has been physically active throughout the appeal period, to include playing golf and tennis four to five times per week, engaging in aerobic activity for at least 150 minutes per day, and engaging in strength training three times per week. The evidence clearly shows he was capable of physical activities such as lifting, bending, sitting, standing, and walking prior to January 9, 2019. Turning to the mental effects of his service-connected bilateral hearing loss, tinnitus, and anxiety disorder, an August 2017 VA examiner found that the Veteran's anxiety causes occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted symptoms of anxiety, panic attacks more than once per week, chronic sleep impairment, and mild memory loss. The Veteran denied prior job performance issues but reported that he always worried about things not turning out right and had to recheck things. He also feared heights and being in enclosed spaces. In October 2018, a VA examiner found that the Veteran's anxiety causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. The examiner noted symptoms of anxiety, panic attacks more than once per week, suspiciousness, and short- and long-term memory impairment, along with issues with concentration. Notwithstanding the findings of the August 2017 and October 2018 VA examiners, a September 2016 VA mental health note showed the Veteran continued to enjoy teaching golf. It also showed that his anxiety had not prevented him from giving complex presentations to important clients when he was employed because he managed his anxiety through repeated rehearsal, practice, and strategizing. Correspondence received from the Veteran's VA psychologist in January 2017 indicates that his anxiety was primarily travel-related and he demonstrated an improved ability to tolerate and resolve anxiety and worry through relaxation and mindfulness techniques. Additionally, the coworker's statement shows his hearing loss affected the coworkers' ability to work and not the Veteran's ability to work. Finally, private treatment records also indicate he continued to enjoy teaching golf as recently as January 2019. Although there is no indication the Veteran was teaching golf on a full-time basis, the evidence shows that there is no reason he could not do so. Given his prior professional golfer status and his "head professional" position, there is no reason for the Board to find that he could not earn an income for full-time golf instruction beyond what would be considered marginal compensation. Given the forgoing, the Board finds that the Veteran's service-connected disabilities, alone or in combination, do not preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history at any time prior to January 9, 2019. He otherwise has not identified or submitted any evidence demonstrating his entitlement to a TDIU prior to January 9, 2019. Thus, the Board finds that the criteria for a TDIU prior to January 9, 2019, have not been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jones, Catherine J. 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.