Citation Nr: 22014077 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 14-25 603 DATE: March 11, 2022 ORDER Entitlement to a compensable disability rating prior to August 19, 2020, for bilateral hearing loss is denied. Entitlement to a rating in excess of 10 percent since August 19, 2020, for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 3, 2014, is remanded. FINDINGS OF FACT 1. Prior to August 19, 2020, the Veteran's bilateral hearing loss manifested as hearing acuity of no worse than Level III for the right and left ear. 2. Since August 19, 2020, the Veteran's bilateral hearing loss manifested as hearing acuity of no worse than Level VI for the right ear and Level III for the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating prior to August 19, 2020, for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.85 DC 6100. 2. The criteria for entitlement to a disability rating in excess of 10 percent since August 19, 2020, for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.85, Diagnostic Code (DC) 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army on active duty from September 1978 to December 1978 and from November 1979 to August 1986. The issues come before the Board of Veterans' Appeals (Board) on appeal from March 2013 and September 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before Veterans Law Judge (VLJ) Hennings in November 2017. A transcript of the hearing has been included with the record. VLJ Hennings has since left the Board. In February 2018, the Board sent the Veteran a letter informing him of the reassignment of his appeal to another VLJ, and that an optional new Board hearing was available upon request. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. The Veteran responded in February 2018, reporting that he did not wish to appear in an additional Board hearing. The Board will consider the case on the evidence of record. The Board remanded the above claims in April 2018 and February 2020 for further development. The issues were most recently before the Board in November 2020. The Board remanded to obtain outstanding VA medical records, including audiograms and audiology consultations; and to provide clarification regarding speech discrimination testing. The record contains the November 2021 correspondence, noting the VA audiogram charts are unavailable for review and further efforts by VA to obtain the records would be futile. Additionally, the record documents the RO's efforts to obtain clarification regarding the speech discrimination testing conducted during the Veteran's October 2011 and September 2014 VA hearing tests, as instructed in the November 2020 remand directives. There has been substantial compliance with the remand instructions, and this matter is again before the Board. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to a compensable disability rating prior to August 19, 2020, and in excess of 10 percent thereafter, for service-connected bilateral hearing loss. The Veteran contends that his bilateral hearing loss warrants disability ratings in excess of what is currently assigned. During the pendency of the Veteran's appeal, in an August 2020 rating decision, the RO granted an increased disability rating of 10 percent for bilateral hearing loss, effective August 19, 2020. As the full benefit was not granted, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally 38 C.F.R. Part IV. The Board determines the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability assessment more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Under DC 6100, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially nonimpaired hearing acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. For VA purposes, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include the Maryland CNC speech recognition test and a puretone audiometry test. 38 C.F.R. § 4.85(a). Further, additional considerations apply when exceptional patterns of hearing impairment are demonstrated. Exceptional patterns of hearing impairment occur when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86(a). Also, when the average puretone 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 Roman numeral. Each ear will be considered separately. 38 C.F.R. § 4.86(b). In addition to dictating objective test results, a VA audiologist must describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). If an audiologist's description of the functional effects of a veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. The Veteran's VA medical records note the Veteran underwent a hearing examination in November 2011 and received hearing aids. In December 2011, the Veteran received a VA hearing loss examination. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 50 60 80 LEFT 30 35 60 70 80 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 90 in the left ear. The VA examiner reported the Veteran's hearing difficulty presented significant effects on the Veteran's occupation. In September 2012, the Veteran underwent a VA hearing loss examination. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 55 60 85 LEFT 40 45 65 75 90 Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 88 in the left ear. During the examination, the Veteran reported a history of bilateral hearing loss which was gradually progressive. The Veteran noted decreased hearing since his last VA examination in 2011. The Veteran reported difficulty in understanding his wife. The Veteran's VA medical treatment records reveal the Veteran underwent audiology examination and a hearing aid evaluation in September 2014. The September 2014 evaluation indicated a mild to severe left ear sensorineural hearing loss from 250 Hertz, and a mild to severe hearing loss from 500 Hertz in the right ear. In August 2018, the Veteran underwent an updated VA hearing examination, which included discussion of new amplification options. The August 2018 hearing evaluation indicated a mild to severe sensorineural hearing loss from 250 Hertz for the left ear, and a mild to severe hearing loss from 500 Hertz in the right ear. The VA audiologist recorded the Veteran's word recognition; however, the audiologist did not indicate the speech recognition test used. The VA audiologist noted the Veteran's speech reception thresholds indicated good reliability in the left ear and fair reliability in the right ear. Notably, the August 2018 VA audiologist reported no changes in puretone measures and/or in word recognition scores in either ear since the 2014 examination. The Veteran testified before the Board in November 2017. The Veteran reported wearing hearing aids. The Veteran noted difficulty understanding the VA examiner during his hearing examination. The Veteran received another VA hearing examination in August 2020. On the authorized audiological evaluation in August 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 60 60 80 85 LEFT 45 50 65 80 85 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 percent in the left ear. The VA examiner noted the Veteran's puretone thresholds and speech scores had worsened since the previous examination. The Veteran reported difficulty hearing in the presence of background noise and often has to ask others to repeat what has been said. Applying the December 2011 examination results to Table VI, a level II hearing impairment is provided for the right ear and a level III for the left ear, the combination of which in Table VII returns a noncompensable disability rating. See 38 C.F.R. § 4.85. In applying the September 2012 examination results to Table VI, a level III hearing impairment is provided for the right ear and a level III for the left ear, the combination of which in Table VII returns a noncompensable disability rating. Id. Finally, applying the August 2020 examination results to Table VI, a level III hearing impairment is provided for the right ear and a level III for the left ear, the combination of which in Table VII returns a noncompensable disability rating. However, the Veteran's right ear hearing loss recorded during the August 2020 examination is considered exceptional under 38 C.F.R. § 4.86(a), as the measured puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) was 55 decibels or more. Applying the Veteran's right ear hearing loss recorded on the August 2020 examination to Table VIA, provides a level VI hearing impairment. The combination with the Veteran's left ear in Table VII returns a disability rating of 10 percent. The medical evidence of record does not show any other testing that provided puretone threshold averages and speech recognition percentages necessary for a compensable disability rating prior to August 19, 2020 during the pendency of the Veteran's appeal. Thus, prior to August 19, 2020, the Veteran's bilateral hearing impairment, as reported in December 2011 and September 2012 VA examinations, is appropriately evaluated as noncompensable under Diagnostic Code 6100. 38 C.F.R. § 4.85. Additionally, since August 19, 2020, the Veteran's bilateral hearing loss, as reported on the August 2020 VA examination, did not reach the level of impairment warranting a disability rating in excess of 10 percent. The Board sympathizes with the Veteran's hearing impairment requiring amplification and his reported functional impairment of difficulty hearing and understanding people. However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Thus, the Board concludes the criteria for a compensable disability rating prior to August 19, 2020, and in excess of 10 percent thereafter for service-connected bilateral hearing loss have not been met at any time during the claim period, and the claim is denied. 38 C.F.R. §§ 4.85-86. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 3, 2014, is remanded. The Veteran contends that he was unable to secure and maintain gainful employment due to his service-connected right knee disabilities. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board must consider all theories of entitlement either expressly raised by the claimant or which are reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447 453-54 (2009). In a February 2020 rating decision, the RO granted the Veteran's claim for a TDIU, effective January 1, 2016. As the full benefit was not granted for the entire period on appeal, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran received a 100 percent rating for his right total knee replacement requiring convalescence, from November 3, 2014 through December 31, 2015. The Court recognizes that 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), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). If a veteran is totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to rate him/her otherwise totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if a veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on a disability other than the disability that is rated at 100 percent. Bradley, 22 Vet. App. 280 (2008). Here, the issue of TDIU is moot from November 3, 2014 through December 31, 2015, as the Veteran has been rated at 100 percent for his right knee disability, and the evidence does not show, that he is unable to work due to any other service-connected disability. Notably, the Veteran's February 2015 application for increased compensation based on unemployability shows the Veteran's claim that his right knee disability alone prevented the Veteran from sustainably gainful employment. As the Veteran is not in receipt of a 100 percent rating for the period prior to November 3, 2014, the issue of TDIU is not rendered moot for that period. Accordingly, the Board has recharacterized the issue to reflect the relevant period under consideration. Prior to November 3, 2014, the Veteran did not meet the criteria for consideration of entitlement to TDIU on a schedular basis. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the period in question, the Veteran had a 20 percent rating for residuals status post right medial meniscectomy; a 10 percent rating for traumatic arthritis of the right knee; a 10 percent disability rating for tinnitus; and non-compensable ratings for bilateral hearing loss and right knee scar secondary to knee surgery. Thus, he did not meet the criteria for consideration for entitlement to a TDIU on a schedular basis, and a TDIU rating is not assignable under 38 C.F.R. § 4.16(a). Nevertheless, an extraschedular TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the applicable percentage standards stated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service, for extra-schedular consideration, all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001); Fanning v. Brown, 4 Vet. App. 225 (1993). Therefore, an extraschedular grant of TDIU prior to November 3, 2014 may be considered if the evidence of record shows the Veteran was unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b). The Veteran reported in his February 2015 VA Form 8940, Veteran's Application for Increased Compensation Based on Unemployability, that he last worked in June 2011. The Veteran reported that he left his last employment due to his right knee disability. The evidence of record showed the Veteran worked as a laborer, roofer, spot welder, and forklift operator. The Veteran reported a high school level of education. The record shows the Veteran filed for Social Security disability benefits in July 2011. The Veteran noted osteoarthritis and his right knee disability limited his ability to work. A review of the record shows that prior to the Veteran's knee replacement, the Veteran complained of knee pain that prevented him from standing for long periods of time. The Veteran's August 2012 VA knee examination noted abnormal range of motion and functional loss of the right leg, including pain on movement. The examination noted the Veteran's constant use of a cane and brace. The VA examiner noted the Veteran's right knee disability impacted the Veteran's ability to perform occupational tasks, including standing for long periods of time or heavy lifting. The Veteran's October 2014 VA examination noted the Veteran's right knee condition had worsened. The Veteran reported knee pain when sitting, standing, and walking. The Veteran reported constant use of a cane for his right knee condition. The VA examiner noted the Veteran's right knee condition impacted his ability to work. Notably, the Veteran's condition impaired his ability to bend, sit, stand, and walk for prolonged periods. In light of the above, the evidence of record prior to November 3, 2014, suggests within a reasonable possibility that the Veteran may have been unable to secure and follow a substantially gainful occupation due to his service-connected right knee disability, and referral to the Director, Compensation and Pension Service for extra-schedular consideration of the Veteran's TDIU claim prior to November 3, 2014, is appropriate. 38 C.F.R. § 4.16(b). As the Board is precluded from awarding TDIU benefits under 38 C.F.R. § 4.16(b) in the first instance, remand is required for referral for extra-schedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU prior to November 3, 2014, to VA's Director of Compensation Service for extraschedular consideration. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.