Entitlement to a rating of total disability based on individual unemployability (TDIU) is denied.
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Citation Nr: 20051029 Decision Date: 07/31/20 Archive Date: 07/31/20 DOCKET NO. 15-09 112 DATE: July 31, 2020 ORDER Entitlement to an initial compensable rating prior to June 22, 2018, and a rating in excess of 10 percent from that date, for bilateral hearing loss is denied. Entitlement to a rating of total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to June 22, 2018, the Veteran’s bilateral hearing loss was characterized by no worse than Level II in the right ear and Level IV in the left ear. 2. From June 22, 2018, the Veteran’s bilateral hearing loss was characterized by no worse than Level IV in both ears. 3. During the period on appeal, the Veteran was not unable to secure and follow substantially gainful employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to June 22, 2018, the criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85. 2. From June 22, 2018, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85. 3. During the period on appeal, the criteria for entitlement to a rating of total disability based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from March 1974 to March 1978, May 1978 to February 1985, and from April 1992 to August 1992. This appeal was remanded by the Board in June 2018. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional medical records were obtained and associated with the claims file, and a new VA examination was obtained, which the Board finds adequate for adjudication purposes. Furthermore, service connection for an acquired psychiatric disorder was granted after this remand. After the required development was completed, this issue on appeal was readjudicated and the Veteran was sent a supplemental statement of the case in March 2020. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. 1. Entitlement to an initial compensable rating prior to June 22, 2018, and a rating in excess of 10 percent from that date, for bilateral hearing loss The Veteran disagrees with his noncompensable rating for bilateral hearing loss, effective August 22, 2012, assigned under 38 C.F.R. § 4.85, DC 6100 in a rating decision dated April 2013. The Veteran filed a timely NOD with this decision. After the June 2018 Board Remand, the AOJ issued an April 2019 rating decision granting a rating increase for bilateral hearing loss to 10 percent, effective June 22, 2018. The Veteran appeals the ratings awarded in both stages, stating that he has difficulty understanding speech on television and in groups in person. Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through level XI, representing profound deafness. See 38 C.F.R. § 4.85. An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination 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 are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Prior to June 22, 2018 At the Veteran’s January 2013 C&P examination the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 40 55 35 LEFT 15 20 40 55 33 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 74 percent in the left ear. An exceptional pattern of hearing impairment has not been shown. Based on these values, the Veteran demonstrates Level II hearing loss in the right ear and Level IV in the left ear. See 38 C.F.R. § 4.85, Table VI. Applying the results of each examination to Table VII, a noncompensable rating is for application throughout the appeal period. Therefore, a compensable rating is not warranted. At the Veteran’s June 2015 C&P examination the Veteran endorsed dizziness symptoms related to vestibular disorders not on appeal. He also mentioned having to turn up the volume on television and on the telephone to be able to hear clearly. His pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 30 40 60 38 LEFT 15 25 35 55 33 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. An exceptional pattern of hearing impairment has not been shown. Based on these values, the Veteran demonstrates Level I hearing loss in both ears. See 38 C.F.R. § 4.85, Table VI. Applying the results of each examination to Table VII, a noncompensable rating is for application throughout the appeal period. Therefore, a compensable rating is not warranted. From June 22, 2018 At his June 2017 hearing, the Veteran testified that his hearing had worsened. Further examination having been ordered, the Veteran’s June 2018 C&P examination report shows pure tone thresholds as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 70 85 58 LEFT 30 40 50 70 48 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 72 percent in the left ear. An exceptional pattern of hearing impairment has not been shown. Based on these values, the Veteran demonstrates Level III hearing loss in the right ear and Level IV in the left ear. See 38 C.F.R. § 4.85, Table VI. Applying the results of each examination to Table VII, a noncompensable rating is for application throughout the appeal period. Therefore, a rating of 10 percent, but no more, is warranted. Finally, at the Veteran’s June 2018 C&P examination, he mentioned difficulty hearing in noisy environments. In group situations, he was able to hear people speaking, but could not always clearly make out their words. The examination report shows puretone thresholds as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 30 50 55 39 LEFT 20 25 35 55 34 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 80 percent in the left ear. An exceptional pattern of hearing impairment has not been shown. Based on these values, the Veteran demonstrates Level IV hearing loss in the right ear and Level II in the left ear. See 38 C.F.R. § 4.85, Table VI. Applying the results of each examination to Table VII, a noncompensable rating is for application prior to June 22, 2018, and a rating of 10 percent, but no higher, is warranted from that date. 2. Entitlement to a rating of total disability based on individual unemployability (TDIU) On April 13, 2004, the Veteran applied for, and was denied a TDIU rating. However, as unemployability was raised by the record in an increased rating claim dated January 18, 2013 for the Veteran’s service-connected shoulder disability, another TDIU claim is inferred under Rice v. Shinseki, 22 Vet. App. 447 (2009) as of that date. Thus, the period for the Veteran’s TDIU claim begins on March 9, 2012. The Veteran seeks a total disability rating based on individual unemployability (TDIU). His claim is based primarily on the severity of his Meniere’s disease, his psychiatric disability and his right shoulder disability. The Board is unable to grant TDIU in this matter because the Board does not find that his service-connected disabilities capable of causing unemployability – that is, the inability to secure and follow substantially gainful employment due to service-connected disabilities. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability 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. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated 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). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). After a review of the evidence of record, the Board determines that TDIU is not warranted. Since a TDIU is essentially a rating, a prior denial does not necessarily preclude another claim. While the Veteran formally applied for TDIU in April 2004 and was denied in January 2015, his increased rating claim for his right shoulder disability dates to January 2013. This is the beginning of the appeal period. The Veteran’s service connected disabilities consist of an acquired psychiatric disability, currently rated at 70 percent from March 11, 2015; residuals of a right shoulder injury, rated 30 percent from November 9, 2000; Meniere’s disease currently rated at 30 percent from August 22, 2012, left plantar fasciitis rated at 10 percent from November 9, 2000, tinnitus rated at 10 percent from August 22, 2012; bilateral hearing loss rated at noncompensable from August 22, 2012 and 10 percent from June 22, 2018 and residuals of a right thumb injury, rated as noncompensable from August 22, 2012. Thus, the Veteran’s combined rating for the period on appeal is 60 percent from August 22, 2012, and 90 percent from March 11, 2015. He has met the schedular criteria for TDIU under 38 C.F.R. § 4.16(a), but only from March 11, 2015. Nonetheless, the Board concludes that TDIU is not warranted, based on the evidence of record, because any inability of the Veteran to secure or follow a substantially gainful occupation is not a result of his service-connected disabilities. See 38 C.F.R. § 4.16(b). Specifically, his service-connected psychiatric, right shoulder, bilateral ear, left foot, and right thumb disabilities do not, by themselves or in combination, cause unemployability. With respect to the medical evidence, the Veteran’s VA medical treatment records indicate that he was not necessarily precluded from work, and that any inability to secure or follow a substantially gainful occupation was a result of non-service-connected disabilities. At January and February 2013 VA examinations, the Veteran reported to an examiner that constant ringing in the ears impairs his concentration, and the disability in his dominant right thumb causes difficulty with gripping and holding objects. Moreover, the Veteran attested that he could not use his dominant right arm for any activity. Further, the Veteran’s June 2015 C&P examiner noted vertigo and staggering more than once weekly, and tinnitus that wakes the Veteran at night. The Veteran reported that these symptoms impaired his ability to climb ladders, or to be in any other position where his vertigo could endanger him or his co-workers. The tinnitus also caused mild mood symptoms, to include edginess. The Board notes that the Veteran stepped down from his employment as a mechanic because his service-connected disabilities precluded work on vehicles, the job he was hired to do. The Veteran’s application for TDIU is based mainly on his right shoulder disability. Rather than seek an accommodation and stay on the payroll, doing menial work that is not in his official job description, the Veteran left employment. While the Veteran’s shoulder prevents him from his usual occupation as a mechanic, the evidence does not show the Veteran’s shoulder or other service-connected disabilities capable of rendering him unable to secure and follow substantially gainful employment. Finally, the Veteran’s June 2018 and April 2019 C&P examiners noted that because of his hearing disability, the Veteran often must ask for repetition. The June 2018 examiner also noted that the Veteran’s tinnitus loud, roaring tinnitus interferes with conversation and sleep. Unfortunately, it often causes emotional distress and makes him want to bash his head against a wall. Thus, the Board acknowledges the medical and lay evidence indicating an inability to work due to mental health symptoms and the inability to use his right arm or hand. However, the fact that even a medical professional finds a Veteran unemployable due to a service-connected disability is not dispositive, as the Board has ultimate responsibility for determining whether a veteran is unemployable. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, the Board finds that despite his limitations, the Veteran is not unemployable. The Board notes that while the Veteran’s concentration is impaired by his tinnitus and Meniere’s disease, the impairment is not at a level to render him unable to keep employment. Indeed, while his disabilities precluded working at heights, the Veteran’s service-connected disabilities are not shown or alleged to prevent sitting at a desk. Further, while the Veteran’s shoulder disability may have relegated him to menial tasks at his previous employer, it does not necessarily limit him to such tasks at any position. Indeed, the medical and lay evidence does not even suggest that the Veteran is unable to concentrate long enough to complete tasks involved in employment. Finally, while the Veteran’s hearing loss impairs his ability to hear in groups, the Board finds that the inability to hear in groups is not detrimental to the Veteran’s ability to maintain employment. The Board infers from the medical and lay evidence that despite his right shoulder disability, the Veteran can learn to use his left arm and hand for basic activities. Indeed, the record shows that during the appeal period, the Veteran was able to work out at the gym. While the Veteran may avoid using his right arm at the gym, exercise generally involves the use of at least one arm. If the arm is not being actively exercised, it is at least being used to manipulate exercise equipment. Since the Veteran has been observed as capable of doing basic activities despite his right shoulder disability, this shoulder disability does not preclude substantially gainful employment. Accordingly, the Board determines that despite his difficulty with balance, his psychiatric limitations, and the inability to use his right arm, the Veteran is not incapable of finding and keeping substantially gainful employment. Because the Board finds that the Veteran is not unable to work due to service-connected conditions, a TDIU rating cannot be awarded. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia