Citation Nr: 1736646	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-31 325	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

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

2.  Entitlement to an initial rating in excess of 10 percent for right chronic otitis media status post right tympanoplasty with atticotomy (right ear disability).

3.  Entitlement to an initial rating in excess of 20 percent for residuals of a broken right ankle, loss of motion with degenerative arthritis.

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

A. Labi, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Marine Corps from January 1973 to October 1975.

This matter comes to the Board of Veterans Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

This matter was previously before the Board in February 2013 at which time it was remanded for additional development to include the scheduling of new VA examinations and the issuance of a Statement of the Case (SOC) for entitlement to a total disability rating based on individual unemployability (TDIU).  A Supplemental Statement of the Case (SSOC) was issued in October 2016 for the issues listed, and it has now returned to the Board.

The issue of entitlement to TDIU has been separately adjudicated, and a SOC was issued in September 2014 pursuant to the February 2013 remand instructions.  The Board considers this issue to have been perfected to the Board as it is tied to the already perfected right ankle issue.  The Veteran through his representative submitted an argument on the issue of TDIU in August 2017.  Thus, the issue of entitlement to TDIU is before the Board.


FINDINGS OF FACT

1.  Throughout the appeal period, the Veteran has manifested no worse than Level II hearing acuity in the right ear and Level III hearing acuity in the left ear.

2.  For the entire rating period, the Veteran's service-connected chronic otitis media status post right tympanoplasty with atticotomy is assigned the maximum schedular rating and symptoms are contemplated by the rating schedule.

3.  The evidence demonstrates that the Veteran's residuals of a broken right ankle, loss of motion with degenerative arthritis is manifested by no more than a marked limitation of ankle motion.

4.  The Veteran's service-connected disabilities have not rendered him unable to secure of follow substantially gainful occupation.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable rating for the Veteran's bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R.§§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100 (2016).

2.  The criteria for a rating in excess of 10 percent for chronic otitis media have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.87, DC 6200 (2016).

3.  The criteria for a rating in excess of 20 percent for residuals of a broken right ankle, loss of motion with degenerative arthritis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014), 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5271 (2016).

4.  The criteria for a TDIU have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.15, 4.16 (2016).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See generally, 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Pursuant to the Board's February 2013 remand, the Agency of Original Jurisdiction (AOJ) performed additional development.  Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Stegall v. West, 11 Vet. App. 268 (1998).

II.  Disability Ratings

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

A.  Bilateral Hearing Loss

The Veteran contends that his service-connected bilateral hearing loss is more disabling than reflected by the current disability rating.

Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (Hz).  See 38 C.F.R. § 4.85, Diagnostic Code 6100.  An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC).  Id.  To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI.  Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters.  Id.  Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear.  Id.

Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran.  38 C.F.R. § 4.86.  This applies to two patterns.  In both patterns each ear will be evaluated separately.  Id.  The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more.  38 C.F.R. § 4.86(a).  The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz.  Id.  If the second pattern exists, the Roman numeral will be elevated to the next higher numeral.  Id.  As the evidence described below shows, neither of the patterns are present in this case.

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an initial compensable evaluation for his bilateral hearing loss under 38 C.F.R. §§ 4.85 or 4.86, DC 6100.

The Veteran was afforded VA audiology examinations in February 2008 and January 2016.  The February 2008 examination revealed left ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 15, 50, 70, and 65, respectively; for the right ear, auditory thresholds in the same frequencies were recorded as 45, 25, 35, and 55, respectively.  The average pure tone threshold was 50 in the left ear and 40 in the right.  Speech recognition ability was 94 percent in the left ear and 84 percent in the right ear.  The results of this examination corresponded to Level II hearing in the right ear and Level I hearing in the left ear.  38 C.F.R. § 4.85(b).  When these values are applied to Table VII, a noncompensable disability rating is assigned.  38 C.F.R. § 4.85.

The January 2016 examination revealed left ear auditory thresholds in the frequencies 500, 1000, 2000, 3000, 4000, 6000, and 8000 Hertz as 20, 25, 60, 80, 75, 75, and 70, respectively; for the right ear, auditory thresholds in the same frequencies were recorded as 60, 50, 40, 55, 65, 70, and 60, respectively.  The average pure tone threshold was 60 in the left ear and 53 in the right.  Speech recognition ability was 90 percent in the left ear and 84 percent in the right ear.  The results of this examination corresponded to Level II hearing in the right ear and Level III hearing in the left ear.  38 C.F.R. § 4.85(b).  When these values are applied to Table VII, a noncompensable disability rating is assigned.  38 C.F.R. § 4.85.

The January 2016 examination report documents that the examiner considered the functional impact of the Veteran's hearing loss on the ordinary conditions of daily life.  In this regard, the examiner noted that the Veteran reported that he has difficulty hearing in most listening situations.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).

The Board has also considered whether an initial compensable evaluation for hearing loss is warranted under 38 C.F.R. § 4.86.  Based on the audiometric findings, however, the Veteran's disability did not meet the requirements of 38 C.F.R. § 4.86.  In this regard, the Veteran did not have pure tone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a pure tone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.

Based on these results, the Board concludes that an initial compensable rating for the Veteran's bilateral hearing loss is not warranted.  It is apparent that the assigned noncompensable disability evaluation for the appeal period for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86.

The Board has considered the Veteran's statement made through his representative, in the July 2017 Post-Remand Brief, that hearing tests using the Maryland CNC speech discrimination test and pure tone threshold average in a quiet audiology booth do not reflect the severity of his condition in the aspect of normal, daily life and asserted that his hearing loss disability warrants a compensable rating.  The assignment of disability evaluations for hearing impairment is a mechanical application of the rating criteria from which the Board cannot deviate.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  This argument is one best described as seeking an extraschedular evaluation under 38 C.F.R. § 3.321(b).  There is nothing in the record to indicate that he has any symptom of his hearing loss that is not contemplated by the rating schedule or for that matter, or that his hearing loss has resulted in marked interference with employment or in frequent hospitalizations.  As such, referral for extraschedular consideration is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).  

The Board finds that the preponderance of the evidence is against an initial compensable rating for bilateral hearing loss, and the appeal as to a higher rating for this disability must be denied.  There is no reasonable doubt to be resolved as to this issue.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.


B.  Chronic otitis media status (right ear disability)

The Veteran contends that his service-connected chronic otitis media status is more disabling than reflected by the current disability rating.

For the entire rating period on appeal since June 4, 2007, the date of the claim, the Veteran's service-connected chronic otitis media is assigned a 10 percent rating, the maximum available under Diagnostic Code 6200.  38 C.F.R. § 4.87.  The rating schedule for chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) does not provide a basis for a higher schedular rating.  Id.

The February 2008 VA examination includes that the Veteran previously had a mastoidectomy on the right side as a child, had chronic otitis media surgery in June 2005, and has had ear infections since the surgery.  The examiner noted that the Veteran had right chronic otitis media despite the tympanoplasty and atticotomy.

In the January 2016 examination, the examiner indicated that the Veteran has signs or symptoms related to tinnitus and hearing impairment.  The report indicates no diagnosis of Meniere's syndrome (endolymphatic hydrops).  The report indicates that the Veteran had serous discharge from the external ear canal, effusion, hearing impairment, tinnitus, and intermittent drainage from the right ear.  The June 2016 addendum to the January 2016 examination provides that there was no indication that the Veteran has labyrinthitis, facial nerve paralysis, or bone loss of the skull.

The Board has considered whether a separate rating is warranted under another Diagnostic Code.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  The Board notes that the Veteran is already in receipt of a separate rating for tinnitus and does not find that based on the medical evidence of record, described above, that a separate rating is warranted under another Diagnostic Code.

Thus, as the Veteran is currently assigned the maximum schedular rating of 10 percent under DC 6200 for the Veteran's service-connected chronic otitis media, the Board finds that a higher schedular rating is not warranted.  The record does not show that the requirements for referral for extraschedular consideration have been met in this case.  That is, the record does not show that the Veteran has symptoms not contemplated by the rating schedule or that his otitis media has resulted in marked interference with employment or in frequent hospitalizations.  

The preponderance of the evidence is against a schedular rating for the Veteran's right ear disability.  The benefit of the doubt is thus not otherwise for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.


C.  Right Ankle

The Veteran contends that his right ankle disability is more disabling than reflected by the current disability rating.

In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part.  Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.  This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered.  DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion of the same joints.  38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1) (2016).

Diagnostic Code 5271 provides a 10 percent rating for moderate limited ankle motion and a 20 percent rating for marked limited ankle motion.  38 C.F.R. § 4.71a, Diagnostic Code 5271 (2016).

The February 2008 VA examination report provides that the Veteran reported symptoms including limping, pain, swelling, heat, redness, weakness, lack of endurance, and flare-ups.  The report also indicates that the Veteran's ankle disability affects his ability to walk and stand.  The report indicates objective evidence of painful motion along the ankle joint medial anteriorly and laterally.  The report provides evidence of tenderness and weakness but no evidence of swelling or instability.  Diagnostic testing revealed minimal degenerative changes, and no acute fractures or dislocations were noted.  The report indicates that the range of motion of the right ankle was dorsiflexion 0-10 degrees (normal 0-20) and plantar flexion 0-15 (normal 0-45), and there was no additional loss of motion due to repetitive use noted.

The January 2016 VA examination shows continued decreased in the Veteran's right ankle range of motion with dorsiflexion to 10 degrees and plantar flexion to 15 degrees.  The report again notes pain with movement and tenderness and notes no additional function loss with repeated use.  The examiner noted that the initial range of motion for the right ankle is abnormal or outside of normal range.  The examiner noted that the range of motion itself contributes to a functional loss, specifically stating that the significantly limited range of motion interferes with normal gait pattern and use of stairs.  The examiner noted pain on examination and noted that it causes functional loss.  The report indicates evidence of pain with weight bearing and notes exquisite tenderness to the anterior lateral ankle joint.  The examiner noted functional loss caused by pain, fatigue, weakness, lack of endurance, and incoordination.  The examiner noted that the Veteran provided a reasonable and credible account of increased pain and instability with repetitive use and exertional use activity but stated that he could not describe additional disability in terms of range of motion occurring outside the clinical setting without resorting to speculation.  The report also indicates active movement against gravity for plantar flexion and dorsiflexion when testing for right ankle strength.  The report indicates that the Veteran constantly utilizes assistive devices to walk, including a brace, a walker, and modified footwear.  The report indicates no evidence of ankylosis.

While the examiner marked on the report that functioning is so diminished that amputation with prosthesis would equally serve the Veteran, the objective medical evidence indicates that the Veteran still has use of his foot.  The examination indicates no evidence of total loss of use.  Diagnostic testing completed shows degenerative or traumatic arthritis of right ankle but there were no other significant diagnostic test findings or results.

The Board further finds that the evidence demonstrates that the Veteran's right ankle arthritis, due to trauma disability, is manifested by arthritis and pain with no more than a marked limitation of ankle motion.  The assigned rating is the highest available schedular rating for an ankle disability without evidence of joint ankylosis.  As indicated above, the medical evidence of record indicates pain on motion and limited motion, but ankylosis is not indicated.  Therefore even if there is not a Correia compliant examination, such is of no consequence because such examination would not reveal ankylosis.  

For the foregoing reasons, the Board finds that the Veteran is appropriately assigned the maximum 20 percent schedular rating for his right ankle disability under DC 5010.  As the preponderance of the evidence is against a rating higher than 20 percent, the benefit of the doubt doctrine is not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.

III.  TDIU

The Veteran filed a formal claim for TDIU in July 2008.  The Veteran indicated that he was last employed full time as a self-employed carpenter in 2004 and that he had to stop working due to his service-connected right ankle condition.  The Veteran reported that he earned his high school graduation through a General Education Diploma (GED) and attended a Construction Management Course in 2002.

Total disability ratings for compensation may be assigned, 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).

In this case, the Veteran is service connected for a right ankle, rated as 20 percent disabling, arthritis of the right hand, rated as 20 percent disabling, right chronic otitis media, rated as 10 percent disabling, tinnitus, rated as 10 percent disabling, and bilateral hearing loss, rated as noncompensable.  Consequently, the combined rating of the Veteran's service-connected disabilities is 50 percent.  Thus, the Veteran fails to meet the threshold rating requirements necessary to establish entitlement to a TDIU under what is referred to as the "schedular" subsection of . 38 C.F.R. § 4.16.  See 38 C.F.R. § 4.16(a).

A total disability rating may also be assigned on an extra-schedular basis, under the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  Even though the percentage requirements of § 4.16(a) are not met, if the evidence establishes that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred to the Director of the VA Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b).  The central inquiry in a claim for TDIU is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

The issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage").  Moore v. Derwinski, 1 Vet. App. 356 (1991).  The fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable 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).

Marginal employment shall not be considered substantially gainful employment.  For purposes of entitlement to TDIU.  Id.  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.  Id.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  Id.

The Veteran reported in February 2009 that the last date he worked was June 2005 and that he was self-employed at that time.

In a financial status report submitted in April 2008, the Veteran notes that he is totally disabled and his sole income of approximately 1,200 dollars comes from Social Security.  In a letter from April 2008, the Veteran states that doctors have told him he will never be able to work again.

In a June 2008 letter, the Veteran states that Social Security found him 100 percent disabled based on his inability to work and that the evidence submitted to Social Security refers to his back pain which "is the results of a (adult) life time of limping as a result of my in-service injury of a broken right ankle, loss of motion with degenerative arthritis."  He also provides that VA medical records from January 2008 until now includes x-rays of his ankle and that the doctor's reports clearly indicate that he is unemployable and unable to work.

The record indicates that the Veteran was awarded Social Security disability benefits beginning in October 2005.  The Social Security records do not indicate that his awarded disability was due to due to his service-connected disabilities.  The Board notes that the Veteran's back condition is not service-connected.

In a January 2016 VA examination report for the right ankle the examiner opined that the Veteran's ankle condition would adversely affect his ability to perform occupations requiring prolonged or exertional weight-bearing activities, kneeling, crouching, squatting, climbing, lifting or carrying.  The examiner stated that the conditions would not interfere with sedentary occupational activity or light physical activity with reasonable accommodation.

In a January 2016 VA audiology examination report, the examiner notes that the Veteran complained of "difficulty hearing in most listening situations."  The examiner opined that his hearing limitations would not impact employment.

After a thorough review of the evidentiary record, the Board finds that the functional limitations imposed by the Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation.  The most probative evidence of record does not demonstrate that the Veteran's service-connected disabilities would preclude him from being able to engage in substantially gainful employment.

The Board is mindful that it is the Board, and not medical professionals, who make the adjudicatory determination on TDIU.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014) (explaining that "applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner").  The Board's decision rests on all of the relevant and probative evidence, not the medical opinions in isolation.

In light of the foregoing, it is clear that the Veteran has experienced impairment due to his service-connected disabilities.  However, by the assigned schedular ratings during the appeal period, the Veteran has been compensated for the symptomatology associated with each of his service-connected disabilities.  Thus, impairment of industrial capacity due to service-connected disabilities has already been taken into consideration via the disability ratings assigned.  The evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disabilities.

As such, the evidence weighs against finding that his service-connected disabilities have combined to cause unemployability.  Entitlement to TDIU is thus not established.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied.  38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Moreover, referral of the TDIU claim to the Director of Compensation Service for extra-schedular consideration is not warranted because the preponderance of evidence is against a finding that the Veteran's service connected disabilities render him unable to secure or follow a substantially gainful occupation.


ORDER

An initial compensable rating for bilateral hearing loss is denied.

An initial rating in excess of 10 percent for right chronic otitis media status post right tympanoplasty with atticotomy is denied.

An initial rating in excess of 20 percent for residuals of a broken right ankle, loss of motion with degenerative arthritis is denied.

TDIU is denied.



____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s