HEARING LOSS

JARRETTE A. MARLEY · 2025 · Case ID: 25002149

MIXED

Summary

The Veteran, an Air Force Veteran who served from February 1967 to June 1988, appeals the denial of an initial compensable rating for bilateral hearing loss and the grant of Total Disability based on Individual Unemployability (TDIU) effective January 28, 2016. The Board previously remanded the hearing loss claim for a new VA examination. The Veteran testified about his worsening hearing loss and the functional impact it has on his daily life, requiring him to ask others to repeat themselves and increase audio device volumes. However, multiple VA audiological evaluations showed hearing acuity and speech recognition that did not meet the criteria for a compensable rating under 38 C.F.R. § 4.85, DC 6100, despite the Veteran's subjective complaints. The Board found the evidence persuasively weighed against a higher rating for hearing loss, denying the claim. For the TDIU claim, the Veteran has service-connected disabilities including degenerative lumbar spinal stenosis (40%), GERD with hiatal hernia (30%), bilateral lower extremity radiculopathy (20% each), right knee osteoarthritis (20%), right knee instability (10%), tinnitus (10%), abdominal scar (10%), and bilateral hearing loss (non-compensable). His combined rating exceeded 70% from September 2018. The Board considered his employment history as a radiology technician and driver, his college education, and his testimony about physical limitations from his back and knee conditions. A vocational assessment report opined he was unable to secure or follow substantially gainful employment since January 2016 due to these disabilities. The Board found the evidence supported granting TDIU effective January 28, 2016.

Rationale

Multiple VA audiological evaluations conducted.; Results did not meet criteria for compensable rating.; Evidence persuasively weighs against claim.

Service Branch

AIR FORCE

Special Benefit

TDIU

Diagnostic Code

6100

Docket No.

20-11 751

Full Decision Text

Citation Nr: 25002149
Decision Date: 02/12/25 Archive Date: 02/12/25

DOCKET NO. 20-11 751
DATE: February 12, 2025

ORDER

Entitlement to an initial compensable rating for bilateral hearing loss is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective January 28, 2016, is granted.

FINDINGS OF FACT

1. Throughout the appeal period, the Veteran had at worse Level II hearing acuity in the right ear and Level III hearing acuity in the left ear; the rating criteria contemplate the Veteran's hearing symptoms.

2. The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation.

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(b); 38?C.F.R. §§?3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.

2. The criteria for entitlement to TDIU, effective January 28, 2016, have been met. 38?U.S.C. §§?1155, 5107(b); 38?C.F.R. §§?3.102, 3.340, 3.341, 4.16.?

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from February 1967 to June 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a virtual hearing before the undersigned Acting Veterans Law Judge (VLJ) in March 2022.

This case was previously before the Board in December 2023. In the December 2023 Board decision, the Board dismissed the Veteran's claims for entitlement to an effective date earlier than January 28, 2016, for the Veteran's award of service connection for degenerative lumbar spine stenosis, right knee osteoarthritis, bilateral hearing loss, and gastroesophageal reflux disease (GERD). Further, the Board granted (1) an initial rating of 30 percent for GERD, (2) an initial rating of 40 percent for degenerative lumbar spinal stenosis, (3) an initial rating of 20 percent for left lower extremity radiculopathy, (4) an initial rating of 20 percent for right lower extremity radiculopathy, (5) an initial rating of 20 percent for right knee osteoarthritis, and (6) a separate rating of 10 percent for right knee instability. The Board remanded the Veteran's claims for entitlement to an initial compensable rating for bilateral hearing loss and a TDIU for further development.

The undersigned Acting VLJ maintains the authority to make the below determination regarding the claims on appeal, notwithstanding the passage of the period of designation of the undersigned Acting VLJ as an acting member of the Board. 38 U.S.C. § 7101(c)(1)(B).

1. Entitlement to an initial compensable rating for bilateral hearing loss.

The Veteran contends that he is entitled to a compensable rating for his bilateral hearing loss. In this regard, the Veteran reported that his hearing loss has worsened over time. See March 2022 hearing transcript.

Legal Criteria

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1.

Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. In evaluating service-connected hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations
38 C.F.R. § 4.1.

Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies of 1,000, 2,000, 3,000 and 4,000 cycles per second. See 38 C.F.R. § 4.85, DC 6100.

The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. See Id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. The horizontal rows in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See Id. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. See Id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row corresponding to the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. Id.

The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See Id.

Factual Background and Analysis

The evidence shows that the Veteran's bilateral hearing loss did not meet or more nearly approximate the criteria for a compensable rating.

On the April 2017 VA audiological evaluation puretone thresholds, in decibels, were as follows:

HERTZ

1000 2000 3000 4000

RIGHT 10 15 20 50

LEFT 10 20 75 70

The average puretone thresholds were 24 in the right ear, and 44 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear.

Applying the results of the April 2017 VA examination to Table VI produces a finding the Veteran had Level I hearing acuity for the right ear, and Level I hearing acuity for the left ear. An exceptional pattern of hearing impairment is not demonstrated. 38 C.F.R. § 4.86.

On the February 2020 VA audiological evaluation puretone thresholds, in decibels, were as follows:

HERTZ

1000 2000 3000 4000

RIGHT 35 30 35 55

LEFT 25 30 75 90

The average puretone thresholds were 39 in the right ear, and 55 in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 92 percent in the left ear.

Applying the results of the February 2020 VA examination to Table VI produces a finding the Veteran had Level II hearing acuity for the right ear, and Level I hearing acuity for the left ear. An exceptional pattern of hearing impairment is not demonstrated. 38 C.F.R. § 4.86.

As noted above in the
2000 3000 4000

RIGHT 35 30 35 55

LEFT 25 30 75 90

As noted above in the Introduction, the Board remanded the claim in December 2023 for a new VA examination to assess the current nature, extent, and severity of his bilateral hearing loss.

On the May 2024 VA audiological evaluation puretone thresholds, in decibels, were as follows:

HERTZ

1000 2000 3000 4000

RIGHT 30 25 45 75

LEFT 30 30 80 90

The average puretone thresholds were 44 in the right ear, and 58 in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 88 percent in the left ear.

Applying the results of the May 2024 VA examination to Table VI produces a finding the Veteran had Level I hearing acuity for the right ear, and Level III hearing acuity for the left ear. An exceptional pattern of hearing impairment is not demonstrated. 38 C.F.R. § 4.86.

The Board is very sympathetic to the Veteran. However, to the extent that VA's current rating schedule requires a significant degree of hearing loss (as measured by audiometric testing, to include speech recognition) before a Veteran can receive increased compensation, neither the Board nor the United States Court of Appeals for Veterans Claims (Court) itself has the power to change those requirements. See Wingard v. McDonald, 779 F.3d 1354 (Fed. Cir. 2015).

In addition, the Veteran's hearing loss results in impaired hearing acuity but the disability is not productive of other manifestations. Thus, the functional impact that the Veteran describes, asking others to repeat themselves, especially in large rooms and crowded venues, as well as needing to increase the volume of his television, radio, and telephone, is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a higher rating is warranted for the Veteran's bilateral hearing loss. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine is therefore not for application as to this claim. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

In light of the foregoing, entitlement to an initial compensable rating for bilateral hearing loss is denied.

2. Entitlement to TDIU.

The Veteran contends that his service-connected disabilities, and in particularly, his degenerative lumbar spinal stenosis, right knee conditions, and radiculopathy of his bilateral lower extremities, prevent him from securing or following a substantially gainful employment. See April 2022 VA Form 21-8940; January 2024 correspondence.

Legal Criteria??

A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities.? See 38?U.S.C. §?1155; 38?C.F.R. §§?3.340, 3.341, 4.16.? Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities.? See 38?C.F.R. §§?3.341, 4.16, 4.19; see also Todd v. McDonald, 27?Vet. App
the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities.? See 38?U.S.C. §?1155; 38?C.F.R. §§?3.340, 3.341, 4.16.? Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities.? See 38?C.F.R. §§?3.341, 4.16, 4.19; see also Todd v. McDonald, 27?Vet. App.?79, 85-86 (2014).????

To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent.? 38?C.F.R. §?4.16(a).? For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability.? Id.? Disabilities that are not service connected cannot serve as a basis for a total disability rating.? 38?C.F.R. §§?3.341, 4.19.????

Unlike the regular disability rating schedule, which is based on the average work impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance."? Rice v. Shinseki, 22?Vet. App.?447. 452 (2009) (quoting Thun v. Peake, 22?Vet. App.?111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86.? Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history.? Hatlestad v. Derwinski, 1?Vet. App.?164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7?Vet. App.?294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6?Vet. App.?532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1?Vet. App.?356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor).????

In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue.? Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.? Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.? Ray v. Wilkie, 31?Vet. App.?58. 73 (2019).????

Factual Background and Analysis

Service connection is in effect for (1) degenerative lumbar spinal stenosis, rated as 40 percent disabling, effective January 28, 2016; (2) gastroesophageal reflux disease (GERD) with hiatal hernia, rated as 30 percent disabling, effective January 28, 2016; (3) osteoarthritis of the right knee, rated as 20 percent disabling, effective January 28, 2016; (4) ventral hernia, rated as 20 percent disabling, effective November 21, 2017; (5) radiculopathy of the left lower extremity, rated as 20 percent disabling, effective September 19, 2018; (6) radiculopathy of the right lower extremity, rated as 20 percent disabling, effective September 19, 2018; (7) instability of the right knee, rated as 10 percent disabling, effective January 28, 2016; (8) tinnitus, rated as 10 percent disabling, effective January 28, 2016; (9) abdominal scar, rated as 10 percent disabling, effective July 9, 2020, and noncompensable from January 28, 2016 to July 8, 2020; and (10) bilateral hearing loss, rated as noncompensable, effective January 28, 2016.

The Veteran has a combined evaluation of 70 percent from January 28, 2016, 80 percent from November 21, 2017, and 90 percent from September 19, 2018. In addition, the Veteran's degenerative lumbar spinal stenosis is rated as 40 percent disabling effective January 28, 2016. As such, the criteria set forth in 38 C.F.R. § 4.16(a) is satisfied throughout the appeal.

After a review of the evidence of record, the Board finds that, when resolving any reasonable doubt in the Veteran's favor, and without considering any impact of his age or nonservice-connected disabilities, the evidence supports awarding TDIU effective from January 28, 2016.

In reaching this determination, the Board emphasizes that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO.? See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).?

In this regard, the Board notes that the Veteran's employment history includes working as a radiology technician for 14 years and previous jobs as a part-time driver. See March 2022 hearing transcript; April 2022 VA Form 21-8940; January 2025 correspondence. The Veteran's education consists of a college education. See April 2022 VA Form 21-8940. The Veteran was last gainfully employed in December 2015. Id.

During the March 2022 Board hearing, the Veteran testified that his back problems and pain in his legs made it difficult to work. The Veteran reported that his previous jobs as a radiology technician and driver required a lot of sitting, standing, and lifting, including moving patients. The Veteran reported that he was last gainfully employed as a driver at the beginning of 2016.

Pertinent evidence of record includes that the Veteran's service-connected disabilities have resulted in physical limitations in the Veteran's ability to secure and follow substantially gainful occupation.?

In a September 2018 addendum opinion, the Veteran's rehabilitation chiropractor, J.F., described the Veteran as suffering reoccurring flare-ups in his lower back with pain radiating down his legs. J.F. noted that the Veteran had limited his daily activities, including housework, golfing, and self-care. In addition, when the Veteran suffered a flare-up, it took him 4 to 5 days to recover to resume daily activities.

In the February 2020 VA examination for the Veteran's right knee, the examiner opined that the Veteran suffered a functional impact on his ability to perform any type of occupational task. The examiner noted that the Veteran was unable to participate in bowling, some activities like mowing the yard were painful, and the Veteran had difficulty getting up from a chair due to his right knee condition.

In the February 2020 VA examination for the Veteran's bilateral hearing loss and tinnitus, the examiner opined that the Veteran suffered a functional impact on his ability to perform ordinary conditions of
and self-care. In addition, when the Veteran suffered a flare-up, it took him 4 to 5 days to recover to resume daily activities.

In the February 2020 VA examination for the Veteran's bilateral hearing loss and tinnitus, the examiner opined that the Veteran suffered a functional impact on his ability to perform ordinary conditions of daily life, noting that the Veteran had difficulty hearing over his tinnitus.

In the July 2020 VA examination for the Veteran's scars and disfigurement, the examiner opined that the Veteran's scars impacted the Veteran's ability to work. The examiner noted that the Veteran had to be careful not to hit his abdomen due to "clips" placed during his hernia surgery.

In the May 2024 VA examination for the Veteran's bilateral hearing loss, the examiner opined that the Veteran's hearing loss and tinnitus impacted the Veteran's ordinary conditions of daily life. The examiner noted that the Veteran had difficulty hearing over his tinnitus, and his hearing loss required him to ask others to repeat themselves, especially in large rooms and crowded venues.

In a January 2025 vocational assessment report, K.S., a vocational rehabilitation counselor, opined that the Veteran's service-connected disabilities were vocationally restrictive, to the point where the Veteran was unable to secure and follow substantially gainful employment, to include unskilled sedentary employment since at least January 2016. K.S. noted that the Veteran's disabilities have caused limitations in his ability to sit, stand, walk, and lift, such that the Veteran was unable to satisfy the basic exertional demands of an unskilled sedentary position. In addition, K.S. noted that the Veteran's disabilities would require excessive time spent off task in order to alleviate symptoms such as pain in his back, pain and swelling in his knee, heartburn, epigastric pain, and nausea. K.S. opined that the Veteran was not employable due to his service-connected disabilities.

Based on the evidence of record, including the evidence highlighted above, the Board finds that the evidence of record persuasively weighs in favor of the Veteran whether the functional impairment associated with his service-connected disabilities, alone, are of such nature and severity as to prevent him from securing or following a substantially gainful employment.?

As such, in light of the Veteran's education, training and work history, the impact of his service-connected disabilities, the Board, in its role as a finder of fact, concludes that the Veteran's service-connected disabilities render him unable to obtain and retain substantially gainful employment since at least January 28, 2016.

Accordingly, the Board finds the Veteran is entitled to an award of TDIU effective January 28, 2016.

Jarrette A. Marley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Nettles, 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.

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