Citation Nr: 1736610	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-44 088	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

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

2.  Entitlement to an evaluation in excess of 10 percent for recurrent spontaneous pneumothorax, status post wedge resection, and pleural thickening, right costophrenic angle prior to March 20, 2014.

3.  Entitlement to an evaluation in excess of 50 percent for complex sleep apnea syndrome with recurrent spontaneous pneumothorax, status post wedge resection and pleural thickening, right costophrenic angle, from March 20, 2014.


REPRESENTATION

Appellant represented by:	Disabled American Veterans




WITNESSES AT HEARINGS ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Navy from January 1970 to January 1974. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in May 2009 and June 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 

In the May 2009 rating decision, the RO, in pertinent part, denied a higher than 10 percent evaluation for recurrent spontaneous pneumothorax with status post wedge resection and pleural thickening, right costophrenic angle.  The Veteran has appealed for a higher evaluation. 

In the June 2010 rating decision, the RO, in pertinent part, granted service connection for bilateral hearing loss and assigned a noncompensable evaluation, effective December 19, 2008.  The Veteran has appealed for a higher initial evaluation. 

The Veteran and his wife testified before a Decision Review Officer at a January 2010 RO formal hearing and the undersigned Veterans Law Judge at an April 2013 Washington, DC hearing.  Transcripts of these hearings are of record.

In June 2013, the Board, in pertinent part, remanded the issues on appeal for additional development.  During the pendency of the appeal, the RO issued a September 2014 rating decision granting service connection for complex sleep apnea syndrome and assigned a 50 evaluation, effective March 20, 2014.  In an August 2015 rating decision, the RO found clear and unmistakable error in the separate evaluation of complex sleep apnea syndrome, as the Veteran was already service-connected for recurrent spontaneous pneumothorax with status post wedge resection and pleural thickening, right costophrenic angle, and to award a separate rating would be pyramiding.  The RO found that the Veteran should be evaluated for one respiratory disability.  See 38 C.F.R. § 4.96(a) (2016). He was thus evaluated for complex sleep apnea syndrome with recurrent spontaneous pneumothorax with status post wedge resection and pleural thickening, right costophrenic angle and continued his 50 evaluation, effective March 20, 2014.  The Veteran continues to appeal for a higher evaluation for his respiratory disability.  AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating). 

After the case was returned to the Board, the case was remanded again in December 2016.  The issues on appeal have since been returned for appellate review. 

The Board acknowledges that the appeal of the issue of entitlement to an initial evaluation in excess of 10 percent for residuals of hernia repair surgery has been perfected and certified to the Board.  The Board's review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on this issue to schedule the Veteran's requested Board hearing.  As such, the Board will not accept jurisdiction over it at this time, but it will be the subject a subsequent Board decision, if otherwise in order.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).





FINDINGS OF FACT

1.  The objective findings correspond to no more than a 0 percent rating for bilateral hearing loss.

2.  Effective prior to March 20, 2014, the Veteran's recurrent spontaneous pneumothorax was manifested by a pulmonary function test showing an FEV-1 of 90 percent predicted and an FEV-1/FVC of 78 percent.  Post-bronchodilator readings were not provided for the DLCO.

3.  Effective March 20, 2014, the Veteran's recurrent spontaneous pneumothorax was manifested by a pulmonary function test showing an FEV-1 of 84 percent predicted, pre-bronchodilator.  The FEV-1/FVC was 73 percent predicted, pre-bronchodilator.  The DLCO was 68 percent predicted.  It was noted that post-bronchodilator testing had not been completed because it was not indicated for the Veteran's condition.  The Veteran's complex sleep apnea required the use of a CPAP machine.


CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.21, 4.85, Diagnostic Code 6100 (2016).

2.  Effective prior to March 20, 2014, the criteria for a rating higher than 10 percent for the Veteran's recurrent spontaneous pneumothorax are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.97, Diagnostic Code 6843 (2016).

3.  Effective March 20, 2014, the criteria for a rating higher than 50 percent for the Veteran's recurrent spontaneous pneumothorax with complex sleep apnea are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.97, Diagnostic Codes 6843, 6847 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C.A. § 5103 and 5103A (West 2014) have been met. By correspondence dated in February 2009 and July 2009, VA notified the Veteran of the information and evidence needed to substantiate and complete claim.  The letters also notified the Veteran as to how VA assigns disability ratings and effective dates.    

VA has also satisfied the duty to assist.  The claims folder contains service treatment records, VA treatment records, and private treatment records.  

The Veteran underwent VA examinations in March 2010, July 2014, July 2015, and August 2015.  The examinations include objective findings necessary for rating purposes.  The examinations also collectively discuss the functional effects due to the Veteran's hearing impairment.  See 38 C.F.R. § 4.85; Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  Additional examination is not needed. 

VA afforded the Veteran an opportunity to give testimony before the Board and the RO.  The hearings focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Decision Review Officer and Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

The claim was remanded for further development.  In reviewing the record, the Board finds substantial compliance with the remand directives.  Dyment v. West, 13 Vet. App. 141 (1999).  Part of the Board's remand in December 2016 was so that additional treatment records from the Clarksburg VAMC dated from January 2009 to October 2011 could be obtained.  However, this facility responded in January 2017 that there were no additional records pertaining to the time frame requested.  No further development is deemed warranted.

In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  See 38 C.F.R. § 3.159.

II.  Increased Ratings 

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2016).  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016).  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2016). 

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58   (1994).  However, when an appeal arises from the initial rating assigned, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 

A.  Hearing Loss

A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

Evaluations of defective hearing range from noncompensable to 100 percent.  The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz .  Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four.  To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness.  See 38 C.F.R. § 4.85, Diagnostic Code 6100. 

The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz  and 70 decibels or more at 2000 Hertz).

Based on the below analysis, the Veteran's bilateral hearing loss would not warrant a rating higher than 0 percent.  

The Veteran underwent a VA audiology examination in March 2010. On physical examination, puretone thresholds were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
15
20
50
70
39
LEFT
25
25
45
50
36

Speech audiometry revealed speech recognition ability of 96 percent in both ears.

Considering the results of the March 2010 examination under Table VI, the Veteran had level I hearing on both sides.  Neither ear showed an exceptional pattern of hearing impairment.  Under Table VII, a Roman numeral I is assigned for both ears, which corresponds to a 0 percent evaluation.

Private audiograms were provided in July 2011 and August 2011.  However, the examination cannot be used for rating purposes as it is not indicated whether the examination complies with the Maryland CNC.  Thus, such report is incomplete for VA purposes.  See 38 C.F.R. § 4.85.  

The Veteran submitted testimony at the Board hearing in April 2013 that his hearing loss had worsened.  See April 2013 Board hearing testimony, p. 3.

The Veteran underwent another VA audiology examination in August 2015.  The Veteran reported that his hearing was getting worse and that he was having more difficulty understanding conversations.  On physical examination, puretone thresholds were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
20
30
45
60
39
LEFT
20
30
45
50
36

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear.

Considering the results of the August 2015 examination under Table VI, the Veteran again had level I hearing on both sides.  Neither ear showed an exceptional pattern of hearing impairment.  Under Table VII, a Roman numeral I is assigned for both ears, which corresponds to a 0 percent evaluation.  

In reviewing the evidence, there is no basis for assigning a compensable rating for bilateral hearing loss.  

The Board acknowledges the Veteran's contentions and the lay assertions of record and notes that he is competent to report his hearing difficulties.  See Charles v. Principi, 16 Vet. App. 370 (2002).  Notwithstanding, a higher rating is not warranted based solely on lay statements.  See Lendenmann. 

As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply.

B.  Recurrent spontaneous pneumothorax prior to March 20, 2014

The Veteran was originally granted service connection for a spontaneous pneumothorax and its residuals in a December 1978 rating decision.  He was assigned a 100 percent rating, effective October 12, 1978; and a 10 percent rating, effective December 3, 1978.  The 10 percent rating has remained in effect until his present claim in December 2008.  

Effective October 7, 1996, substantive changes were made to the schedular criteria for evaluating respiratory disorders, as set forth in 38 C.F.R. §§ 4.96 -4.97.  See 61 Fed Reg. 46720 -46731 and 52695-52702 (1996). 

Prior to October 7, 1996, a pneumothorax was rated under Diagnostic Code 6814 which provided a 100 percent evaluation for a spontaneous pneumothorax for six months.  Thereafter, the residuals are rated analogously to bronchial asthma under Diagnostic Code 6602. 38 C.F.R. § 4.97, Diagnostic Code 6814 (1995). 

Diagnostic Code 6602 provides for the evaluation of bronchial asthma.  When mild, with paroxysms of asthmatic-type breathing (high-pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks, a rating of 10 percent is provided. When moderate, with asthmatic attacks rather frequent (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks, a rating of 30 percent is provided.  When severe, with frequent attacks of asthma (one or more attacks weekly), and marked dyspnea on exertion between attacks with only temporary relief by medication and more than light manual labor precluded, a rating of 60 percent is provided. 38 C.F.R. § 4.97, Diagnostic Code 6602 (1995). 

Under the criteria in effect since October 7, 1996 a traumatic chest wall defect, pneumothorax, etc., is rated under Diagnostic Code 6843.  Disorders rated under Diagnostic Code 6843 are rated based on the General Rating Formula for Restrictive Lung Disease. Under this formula, a veteran will be rated as 100 percent disabled with Forced Expiratory Volume (FEV-1) less than 40 percent of predicted value, or with the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or with Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or with maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or with cor pulmonale (right heart failure), or with right ventricular hypertrophy, or with pulmonary hypertension (shown by Echo or cardiac catheterization), or with episode(s) of acute respiratory failure, or if the veteran requires outpatient oxygen therapy. 

A 60 percent rating is warranted where FEV-1 is 40 to 55 percent of predicted, or; FEV-1/FVC is 40 to 55 percent, or; DLCO (SB) is 40- to 55-percent of predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). 

A 30 percent rating is warranted where FEV-1 is 56 to 70 percent of predicted, or; FEV-1/FVC is 56 to 70 percent, or; DLCO (SB) is 6 to 65 percent of predicted. 

A 10 percent rating is warranted where FEV-1 is 71 to 80 percent predicted; FEV-1/FVC is 71 to 80 percent; or where DLCO (SB) is 66 to 80 percent predicted. 38 C.F.R. § 4.97, Diagnostic Code 6843 (2016).

The criteria in effect since October 7, 1996 apply to the Veteran's claim since it was filed in December 2008.  The medical evidence does not show that a higher rating of 30 percent is warranted for the Veteran's pneumothorax effective December 22, 2008 to March 20, 2014.  

VA treatment records note a finding of mild interstitial fibrosis per computed tomography in May 2007 and complaints of dyspnea on exertion, resolved.  See, e.g., July 29, 2008 primary care note.  The Veteran testified at the RO hearing that his breathing had worsened and that he was constantly out of breath.  See January 2010 RO hearing, p. 7.

A March 2010 VA examination report notes a mild restrictive ventilatory defect based on spirometry and lung volumes.  There was significant improvement in flow post inhaled bronchodilators and moderate impairment of diffusion capacity.  The pulmonary function test showed an FEV-1 of 90 percent predicted and an FEV-1/FVC of 78 percent.  Post-bronchodilator readings were not provided for the DLCO.  The interpretation was that there was no obstructive lung defect indicated by the FEV-1/ FVC ratio. There was a mild restrictive lung defect and a moderate decrease in diffusing capacity.  There also was a good response to bronchodilator.

A June 2011 VA pulmonary function test also shows mild obstructive ventilatory defect based on spirometry.  There was no significant improvement in flow post inhaled bronchodilators.  The lung volumes were within normal limits; there was mild impairment in diffusion capacity.

These findings do not support a 30 percent rating under Diagnostic Code 6843, based on the General Rating Formula for Restrictive Lung Disease; as the evidence did not show FEV-1 is 56 to 70 percent of predicted, or; FEV-1/FVC is 56 to 70 percent, or; DLCO (SB) is 6 to 65 percent of predicted. 

C.  Complex sleep apnea syndrome with recurrent spontaneous pneumothorax, from March 20, 2014.

As noted in the introduction, the RO granted service connection for complex sleep apnea in an August 2014 rating decision and assigned a 50 percent rating, effective March 20, 2014.  The complex sleep apnea is rated under 38 C.F.R. § 4.97, Diagnostic Code 6847.  A 50 percent rating is assigned for sleep apnea syndromes that require use of breathing assistance device such as continuous airway pressure (CPAP) machine.  A 100 percent rating is assigned for sleep apnea syndrome involving chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring tracheostomy.  

In an August 2015 rating decision, the RO found clear and unmistakable error in the August 2014 rating decision, insofar as it assigned separate ratings for his sleep apnea and pneumothorax, as they were both manifested by the respiratory impairment and in light of the prohibition against combining ratings for coexisting respiratory conditions with each other.  The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14; see also 38 C.F.R. § 4.96 (a) (Special provisions regarding evaluation of respiratory conditions; rating coexisting respiratory conditions).  Thus, the Veteran's disability assigned the 50 percent rating was reframed as Complex sleep apnea syndrome with recurrent spontaneous pneumothorax, effective March 20, 2014.

The medical evidence effective March 20, 2014 does not show that a rating higher than 50 percent is warranted for the complex sleep apnea syndrome with recurrent spontaneous pneumothorax.

A July 2015 VA respiratory examination report shows FEV-1 of 84 percent predicted, pre-bronchodilator.  The FEV-1/FVC was 73 percent predicted, pre-bronchodilator.  The DLCO was 68 percent predicted.  It was noted that post-bronchodilator testing had not been completed because it was not indicated for the Veteran's condition.  As noted in the previous section, these findings meet the criteria for a 10 percent rating under Diagnostic Code 6843, based on the General Rating Formula for Restrictive Lung Disease.  

A rating higher than 50 percent also is not warranted under Diagnostic Code 6847 for sleep apnea.  A July 2014 VA sleep apnea examination report shows the Veteran required the use of a CPAP machine.  He also had persistent daytime hypersomnolence.  It was noted that an August 2011 sleep study showed severe complex sleep apnea syndrome.  These findings show that a 50 percent rating, but no higher, is warranted for sleep apnea under Diagnostic Code 6847.

The level of impairment has been relatively stable throughout this rating period, and symptomatology has not been worse at any point during the appeal period than what has been discussed above.  Therefore, the application of additional staged ratings is not in order.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The preponderance of the evidence is against the assignment of an increased rating, and the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

III.  Other Considerations

The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321 (a).  According to Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether an appellant is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a claimant's disability picture and that picture includes related factors, such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director to determine whether, to accord justice, the appellant's disability picture requires the assignment of an extraschedular rating.  See 38 C.F.R. § 3.321(b)(1) (2015).

The Board has considered whether the Veteran's hearing loss and pneumothorax with sleep apnea present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that an extraschedular rating is warranted, the threshold factor for extraschedular consideration.  See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  

With respect to the hearing loss, the Veteran reported difficulty in conversations.  Regarding the pneumothorax with sleep apnea, he reported dyspnea on exertion and some respiratory difficulties.  However, this does not present an exceptional or unusual disability picture, and the assigned schedular evaluations are, therefore, adequate.  See Thun, 22 Vet. App. at 115.  

With regard to the first step of the Thun analysis, the service-connected pneumothorax has been evaluated based on pulmonary function testing to determine the level of respiratory impairment; and his sleep apnea has been evaluated to determine that he requires a CPAP machine.  These symptoms are contemplated under 38 C.F.R. § 4.97, Diagnostic Code 6843 (pneumothorax); and Diagnostic Code 6847 (sleep apnea syndromes).  

The Veteran's service-connected hearing loss is manifested by symptoms of difficulty hearing, which are encompassed within the rating criteria under Diagnostic Code 6100.  The Board finds that the rating criteria adequately describe the Veteran's disability level and symptomatology.  In addition, the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the amendments of 38 C.F.R. § 4.85, proposed in April 1994, which sought to recognize and address exceptional patterns of hearing impairment which were not fully contemplated by the existing criteria.  See 59 Fed. Reg. 17,295 (Apr. 12, 1994).  The first proposed amendment contemplated a pattern of hearing loss where "speech discrimination tests in a controlled setting are often near normal, [but] they do not reflect the true extent of difficulty understanding speech in the everyday work environment, even with the use of hearing aids."  Id. at 17,296 . The second proposed amendment contemplated a pattern of hearing loss constituting "an extreme handicap in the presence of any environmental noise, [which] often cannot be overcome by the use of hearing aids."  Id.  VA explained that "[t]he intended effect of these two new provisions is to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting."  Id.  The VA adopted the proposed amendments on May 11, 1999, effective June 10, 1999.  See 64 Fed. Reg. 25,202  (May 11, 1999).

More recently, the Court held that the rating criteria for hearing loss contemplates the functional effects of decreased hearing, as well as difficulty understanding speech, in an everyday work environments.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).  In reaching this conclusion, the Court relied upon the plain language of 38 C.F.R. §§ 4.85, 4.86, as well as the above recited regulatory history.  Therefore, per the Court's holding, when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.  Id.  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Entitlement to an extraschedular rating pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. 

Finally, the Board has considered whether a claim for unemployability has been raised by the record.  Here, the record does not suggest that the Veteran is unemployable as a result of his service-connected hearing loss.  In addition, there is no evidence the Veteran is prevented from working due to the complex sleep apnea syndrome with recurrent spontaneous pneumothorax.   An April 2010 VA examination report shows the Veteran was employed full-time as a real estate broker and had no effects on employment from his respiratory condition.  A July 2014 VA examination report notes that the Veteran's sleep apnea made him less productive at work and late for work, but there were no findings that the Veteran was prevented from working due to the sleep apnea.  A July 2015 VA examination report notes that the Veteran's respiratory condition would prevent physically-demanding work, but would not impair his ability to perform sedentary work.  Therefore, the Board concludes that entitlement to a total disability rating based on individual unemployability has not been raised at this time.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).


ORDER

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

Entitlement to an evaluation in excess of 10 percent for recurrent spontaneous pneumothorax, status post wedge resection, and pleural thickening, right costophrenic angle prior to March 20, 2014, is denied.

Entitlement to an evaluation in excess of 50 percent for complex sleep apnea syndrome with recurrent spontaneous pneumothorax, status post wedge resection and pleural thickening, right costophrenic angle, from March 20, 2014, is denied.




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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