Citation Nr: 22018769 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 20-10 200 DATE: March 30, 2022 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 16, 2019, is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level I in either ear. 2. The Veteran's service-connected disabilities did not prevent him from obtaining and maintaining substantially gainful employment consistent with his education and occupational background prior to May 16, 2019. CONCLUSIONS OF LAW 1. The criteria for a 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 entitlement to a TDIU have not been met prior to May 16, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to May 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in June 2021. A transcript of that hearing is of record. These matters were remanded by the Board in December 2021. The Board remanded the claims in December 2021. There has been substantial compliance with the remand with the remand directives and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a compensable rating for bilateral hearing loss The Veteran contends that he should be assigned a compensable rating for his bilateral hearing loss because he has trouble understanding what people say when he is talking to them. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). 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. Further, when the average pure tone 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The most severe level of hearing loss shown in the record is a January 2022 VA examination, which found that the Veteran's hearing loss does not impact the ordinary conditions of daily life. 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: January 25, 2022 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 30 45 50 36 100% LEFT 30 40 50 50 42 100% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's report at the May 2018 VA examination that he has to ask people questions about what they are saying because it does not sound clear, and his June 2021 hearing testimony that he has trouble understanding what people say when he is talking to them such that he has trouble using the phone and has to ask people to repeat themselves. 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 compensable rating for hearing loss. As the most probative evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Entitlement to a TDIU prior to May 16, 2019 The Veteran contends that he was not able to obtain or maintain substantially gainful employment consistent with his education and occupational history due to his service-connected disabilities due to his service-connected disabilities prior to May 16, 2019. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, 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). Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The central inquiry is "whether service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The level of education, special training, and previous work experience may be considered as part of a TDIU claim. Age or impairment(s) caused by nonservice-connected disabilities may not be considered when determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Prior to May 16, 2019, the Veteran was service-connected for posttraumatic stress disorder (PTSD), rated as 50 percent disabling; tinnitus, rated as 10 percent disabling; and hearing less, rated as noncompensable. The combined disability rating was 60 percent. The Veteran thus does not meet the schedular requirements under 38 C.F.R. § 4.16(a). It is the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, Compensation and Pension 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 paragraph (a) of this section. The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Therefore, even though the Veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board must still consider whether referral for entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is appropriate. In this case, September 2020 correspondence indicates that the Veteran last worked as a carpenter from 1980 to 1988. The Veteran's April 2020 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability ("TDIU Application"), states that he stopped working because of anxiety being around people, ringing in his ears, and an inability to hear what is going on around him. The TDIU Application also indicates that the Veteran has graduated from college. A June 2017 VA examination as to PTSD indicates that the Veteran last worked as a metal framer and stopped because of hand and joint pain. The May 2018 VA examination as to hearing loss and tinnitus found that the Veteran's hearing loss and tinnitus do not prevent him from performing any of his daily activities, including his ability to function in an occupational environment, nor does it limit his functional abilities in any of his daily activities, including his ability to obtain or maintain employment. While the Board recognizes that the Veteran has difficulty hearing others and must sometimes ask them to repeat themselves, the record does not reflect that this difficulty is so severe that he would be unable to work. A May 2018 VA examination as to PTSD found that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity, and noted that the Veteran occasionally teaches children carpentry work. A February 2019 VA treatment record indicates that the Veteran is retired as a carpenter, but that he volunteers to help with a group outside of VA. A March 2019 VA treatment record indicates that the Veteran also volunteers with the DARE program, and with an organization where he helps others learn the trade of carpentry. The record thus reflects that, prior to May 16, 2019, the Veteran's service-connected PTSD did not prevent him from interacting with others while volunteering with children or prevent him from teaching others the trade of carpentry. Although the Board recognizes that the Veteran's PTSD increased in severity effective May 16, 2019, there is nothing in the record prior to May 16, 2019, to indicate that the Veteran's service-connected PTSD would prevent him from working as a carpenter or teaching carpentry on a full-time, paid basis. While the Board recognizes that the Veteran's hand or joint pain might prevent the Veteran from working as a carpenter or even teaching others carpentry full-time, the Veteran is not service-connected for any disability causing hand or joint pain. The Board may only consider the Veteran's service-connected disabilities in determining whether he is entitled to a TDIU. The most persuasive evidence of record prior to May 16, 2019, simply does not support a finding that the Veteran's service-connected disabilities prevented him from obtaining or maintaining substantially gainful employment consistent with his education and occupational background. Therefore, referral for an extraschedular TDIU is not warranted. As the most persuasive evidence is against the claim, entitlement to a TDIU prior to May 16, 2019, must be denied. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.