Citation Nr: 22014449 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 14-12 655 DATE: March 12, 2022 ORDER A rating in excess of 90 percent for bilateral hearing loss from December 3, 2015 to April 7, 2020 is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 3, 2015, is denied. FINDINGS OF FACT 1. From December 3, 2015 to April 7, 2020, the Veteran's bilateral hearing loss resulted in, at worst, a Roman Numeral XI for the poorer ear and Roman Numeral X for the better ear, resulting in a 90 percent rating under Table VII. 2. The Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation prior to December 3, 2015. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 90 percent for bilateral hearing loss from December 3, 2015 to April 7, 2020 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for entitlement to a TDIU prior to December 3, 2015 have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to May 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2015, February 2020, January 2021 and September 2021, the Board remanded the case for further development. 1. Entitlement to a rating in excess of 90 percent for bilateral hearing loss from December 3, 2015 to April 7, 2020 The assignment of a disability rating for hearing impairment is "derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). Specifically, organic impairment of hearing acuity is rated by using audiological test results, obtained by a state-licensed audiologist, and the basic rating method involves using both the results of controlled speech discrimination tests (Maryland CNC) and the average decibel threshold level as measured by pure tone audiometry tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85(a). Tests are conducted without hearing aids. The rating schedule establishes eleven auditory acuity levels ranging from numeric level I through numeric level XI, obtained by applying the findings to Table VI or VI(a). 38 C.F.R. §§ 4.85, 4.86. The numeric designations for both ears are then applied to Table VII to derive the percentage evaluation, under Diagnostic Code 6100. In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VI(a), whichever results in the higher numeral. Each ear will be evaluated separately. When the puretone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VI(a), whichever results in the higher numeral. That numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86. The record reflects a VA hearing examination was performed by an audiologist in December 2015. The Veteran described having to turn up the television very loud. He stated he could not hear anything. He reported having to use a speaker phone, and said he had to stop flying because could not hear the control tower. He also reportedly could not hear a burglar trying to break into house. The examination showed hearing loss at frequencies of 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz and 4000 Hz to be 55 dB, 60 dB, 75 dB, 105 dB and 105 dB, respectively in the right ear. Average hearing in the right ear was 86 dB. In the left ear, at the same frequencies, the Veteran showed hearing of 65 dB, 65 dB, 85 dB, 105+ dB and 100 dB respectively. Average hearing in the left ear was 89 dB. Speech recognition was 40 percent in the right ear and 4 percent in the left ear. Applying the results from the December 2015 audiological examination to Table VI yields a Roman numeral value of X in the right ear and XI in the left ear, yielding a 90 percent disability rating. The Board notes the Veteran has an exceptional pattern of hearing as defined by 38 C.F.R. § 4.86, given that the results of audiology testing show puretone thresholds at all four of the specific frequencies of 55 dB or more. As these results would yields a Roman number value of VIII for the right ear and VIII for the left ear under Table VI(a), which supports a 40 percent disability rating when applying Table VII, a rating under Table VI is more favorable to the Veteran. Also of records is the report from a September 2019 audiogram that was performed at the Louis A. Johnson VA Medical Center (VAMC) for treatment purposes. It was noted there was moderately severe to profound sensorineural hearing loss with speech awareness. There were also noted to be decreases in lows and word recognition. The examination showed hearing loss at frequencies of 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz and 4000 Hz to be 80 dB, 75 dB, 85 dB, 105+ dB and 105 dB, respectively in the right ear. In the left ear, at the same frequencies, the Veteran showed hearing of 70 dB, 70 dB, 85 dB, 105+ dB and 105 dB respectively. The Board finds this audiogram is not adequate for rating purposes. In particular, the treating audiologist did not perform Maryland CNC speech recognition testing. While they indicated speech recognition could not be conducted, they provided no explanation as to why they made this finding such as it being inappropriate because of language difficulties, inconsistent speech discrimination scores, etc. Pursuant to 38 C.F.R. § 4.85, an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a Maryland CNC test. As this was not done, the audiogram may not be used to rate the Veteran's disability. The Board notes, however, that even if the puretone thresholds from the September 2019 audiogram alone were able to be used to evaluate the Veteran's hearing loss under Table VI(a), it would not result in a higher rating. Rather, under Table VI(a), the Veteran would be awarded a 60 percent rating whereas he is currently assigned a 90 percent rating. A VA examination was again conducted in April 2020. The examination showed hearing loss at frequencies of 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz and 4000 Hz to be 65 dB, 75 dB, 80 dB, 100+ dB and 100+ dB, respectively in the right ear. Average hearing was 89 dB in the right ear. In the left ear, at the same frequencies, the Veteran showed hearing of 65 dB, 70 dB, 80 dB, 100+ dB and 100+ dB respectively. Average hearing in the left ear was 88. Speech recognition was 12 percent in the right ear and 0 percent in the left ear. Applying the results from the April 2020 audiological examination to Table VI yields a Roman numeral value of XI in the right ear and XI in the left ear, yielding a 100 percent disability rating. Based on this April 2020 VA examination, an August 2020 rating decision granted the Veteran a 100 percent rating effective April 7, 2020, the date of that examination. While the record includes VA treatment notations in which the Veteran was seen for his hearing loss and repair of his hearing aids, there are no additional audiometric findings for the period at issue. Given the foregoing, the Board finds that a higher rating of 100 percent is not warranted for the Veteran's bilateral hearing loss for the period from December 3, 2015 to April 7, 2020. The December 2015 VA examination, as discussed above, yields a Roman numeral value of XI in the left ear and X in the right ear, corresponding with a 90 percent rating. Additionally, the September 2019 audiogram was not able to use speech discrimination scores, and as discussed above, therefore may not be used for rating purposes. As such, there is no audiometric evidence during this period to support a rating in excess of 90 percent until the April 2020 VA examination. In making the foregoing determination, the Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports of not being able to hear anything, having to turn up the volume on his television and use a speaker phone, and having to stop flying because he could not hear the control tower. The Veteran is competent to report difficulty with his hearing; 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, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to a rating in excess of 90 percent for hearing loss from December 3, 2015 to April 7, 2020. As the most probative evidence of record persuasively weighs against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU prior to December 3, 2015 Entitlement to TDIU was granted effective December 3, 2015 pursuant to a December 2021 rating decision by the RO. However, TDIU has been considered part and parcel of his claim for an increased rating for hearing loss which stems back to an October 16, 2012 claim. As such, the Board must consider TDIU prior to December 3, 2015. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the U.S. Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. By itself, the fact that a veteran is unemployed or has difficulty obtaining employment is not enough to establish entitlement to TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "The question is whether the veteran is capable of performing the physical and mental acts required by employment." Id. If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA 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). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service (Director) for extraschedular consideration. Id. Prior to December 3, 2015, the Veteran was service-connected for bilateral hearing loss, rated 50 percent; and tinnitus, rated 10 percent. The Veteran's combined rating was 60 percent. As hearing loss and tinnitus are diseases which both affect the ears, they may be rated together as a single disability. Therefore, their combined rating of 60 percent represents the rating for an individual disability for purposes of rating TDIU. As such, prior to December 3, 2015, the Veteran met the schedular criteria of one disability rated at 60 percent. The Veteran's January 2021 VA 21-8940, Application for Increased Compensation Based on Individual Unemployability, indicates the Veteran worked as a machine operator at several coal companies, to include most recently ICB Craigsville, WV from 2008 to 2010. These were all said to be out of business. Notably, the Veteran indicated he did not leave his last job because of his disability. He reported education through high school, with a history of working as an operator/mechanic. The Veteran indicated he was presently retired. According to a November 2012 VA hearing loss examination, the Veteran reported working at a radio show two days a week. It was noted that his condition impacted his conditions of ordinary daily life, including his ability to work. Specifically, the Veteran stated his wife said it was becoming dangerous for him to drive because he could not hear well on the left side. He described that at the radio station he had to wear his headphones to block the left out because otherwise it was blurry, but he could hear better if he blocked the left ear out. He reported that he misunderstood people frequently. Based on the foregoing, the Board finds a rating for TDIU prior to December 3, 2015 is not warranted. While the Veteran met the schedular criteria for TDIU, he was not shown to be unable to secure substantially gainful employment by reason of his service-connected disabilities. The Board acknowledges that the Veteran has not worked since 2010, but further notes that the term unemployability is not synonymous with the terms unemployed and unemployable for the purposes of determining entitlement to TDIU. A Veteran may be unemployed or unemployable for a variety of reasons, but a determination as to entitlement to TDIU is appropriate only when the Veteran's unemployment or unemployability is the result of a service-connected disability. Here, the Board notes in pertinent part that the Veteran indicated on his VA 21-8940 that he did not leave his most recent job as a result of his service-connected disabilities, and that he indicated being retired. Additionally, while the November 2012 VA examiner indicated the Veteran's hearing loss and tinnitus condition affected the conditions of ordinary life, including work, the examiner did not indicate that the Veteran would be unable to work as a result of his disabilities. In fact, the Veteran described the adjustments he made for his condition at his job working on the radio two days a week. While the Board notes this does not necessarily constitute substantially gainful employment, as it appears to be part time, it indicates he is not unable to perform the tasks required of employment. Notably, there is no further medical opinion or other competent evidence indicating the Veteran would be unable to work due to his condition prior to the December 3, 2015 VA examination supporting the later grant of TDIU. In light of the foregoing, the Board finds the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow any substantial gainful employment prior to December 3, 2015. While the Veteran may have experienced some occupational impairment due to his service-connected hearing loss and tinnitus prior to December 3, 2015, the record reflects that such impairment was adequately compensated by the assigned schedular ratings. Loss of industrial capacity is the principal factor in assigning disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Despite his demonstrated symptomatology, the evidence of record does not support a finding that the Veteran was unable to secure and maintain a substantially gainful occupation by reason of his service-connected disabilities prior December 3, 2015. (Continued on the next page) In conclusion, while the Board does not wish to minimize the nature and extent of the Veteran's service-connected disabilities, the evidence of record simply does not support his claim that his service-connected disabilities prior to December 2, 2015, alone were sufficient to produce unemployability. To the extent he was limited by his service-connected disabilities, any such limitation was contemplated in, and was adequately compensated by, the disability ratings assigned. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Stuedemann, A. 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.