Citation Nr: 18160538
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-62 847
DATE:	December 27, 2018
ORDER
Entitlement to an initial compensable disability rating for bilateral hearing loss is denied.
Entitlement to an initial disability rating in excess of 10 percent for nephrolithiasis is denied.
Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, effective March 11, 2016. 
REMANDED
Entitlement to service connection for implanted cardiac pacemaker, claimed as a heart condition, is remanded.
Entitlement to extraschedular TDIU prior to March 11, 2016 is remanded.
FINDINGS OF FACT
1. Audiometric examination corresponds to no greater than Level I hearing loss in both ears.
2. The Veteran’s nephrolithiasis has not required diet therapy, drug therapy, or invasive or noninvasive procedures more than two times per year.
3. From March 11, 2016, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities.
CONCLUSIONS OF LAW
1.  The criteria for an initial compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012).  38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, Diagnostic Code 6100 (2017).
2. The criteria for an initial disability rating in excess of 10 percent for nephrolithiasis have not been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.115b, Diagnostic Codes 7508-7510 (2017).
3. The criteria for entitlement to TDIU from March 11, 2016 are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1978 to January 1984.  
The Veteran appeals a January 2012 rating decision by the Agency of Original Jurisdiction (AOJ) granting a noncompensable rating for bilateral hearing loss, effective July 19, 2011, granting a 10 percent rating for nephrolithiasis, effective July 19, 2011, denying service connection for a heart condition, and denying entitlement to TDIU.  When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  
Increased Rating
Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  
Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required.  See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999).  The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  
Importantly, the evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability.  Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102.
1. Entitlement to an initial compensable rating for bilateral hearing loss
Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85, Tables VI, VIA, VII.  To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness.  Table VI is used to determine the Roman numeric designation, based on test results consisting of pure tone thresholds and Maryland CNC test speech discrimination scores.  The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment.  Id.  
Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).
On the authorized audiological evaluation in September 2013, pure tone thresholds, in decibels, were as follows:
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	 15	15	5	15	25
LEFT	 10 	15	10	15	10

The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 15 decibels in the right ear and 13 decibels in the left ear.  The speech recognition scores on the Maryland CNC word list were 94 percent for the right ear, and 96 percent for the left ear.
Applying the test results of the September 2013 Department of Veterans Affairs (VA) examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for both ears.  38 C.F.R. § 4.85, Table VI.  Applying the Roman numeric designations to Table VII, the result is a 0 percent rating for the Veteran’s service-connected bilateral hearing loss.
On the authorized audiological evaluation on October 2011, pure tone thresholds, in decibels, were as follows:
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	30	30	25	20	30
LEFT	30	35	25	25	30

The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 26 decibels in the right ear and 29 decibels in the left ear.  The speech recognition scores on the Maryland CNC word list were 100 percent in both ears.
Applying the test results of the October 2011 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for both ears.  38 C.F.R. § 4.85, Table VI.  Applying the Roman numeric designations to Table VII, the result is a 0 percent rating for the Veteran’s service-connected bilateral hearing loss.  
There are no other audiometric testing results for the remainder of the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes.  Accordingly, the evidence of record does not support a compensable initial disability rating for bilateral hearing loss.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).
2. Entitlement to an initial rating in excess of 10 percent for nephrolithiasis
The Veteran’s kidney stone condition is currently rated under Diagnostic Code (DC) 7508, but the Board also notes diagnosis of ureterolithiasis, which is rated under DC 7510.  Pursuant to their codes, DC 7508 for nephrolithiasis or DC 7510 for ureterolithiasis is rated as hydronephrosis under DC 7509.  However, they will be rated as 30 percent disabling under either DC 7508 or 7510 where there is recurrent stone formation requiring one or more of the following: (1) diet therapy; (2) drug therapy; or (3) invasive or noninvasive procedures more than two times per year. 
Pursuant to DC 7509, hydronephrosis warrants a 10 percent rating where there is only an occasional attack of colic, without infection and without requiring catheter drainage.  A 20 percent disability rating is warranted for frequent attacks of colic requiring catheter drainage.  A 30 percent disability rating is warranted where there are frequent attacks of colic with infection (pyonephrosis) and impaired kidney function.  If hydronephrosis is severe, it is rated as renal dysfunction.  38 C.F.R. § 4.115b, DC 7509.
The September 2013 VA examiner rendered a diagnosis of nephrolithiasis and ureterolithiasis since 1983.  The Veteran reported he had surgery and dialysis for his kidney stones in 1982 and that he currently passes on average one stone every two years.  The examiner indicated that the Veteran’s treatment plan does not include taking continuous medication.  There was insufficient evidence of renal dysfunction.  The examiner confirmed urolithiasis with calculi located in the kidney, which required “no invasive treatment since the first time in 1983.”  Id.  The Veteran had signs or symptoms due to urolithiasis every two years “with passage of a stone.”  The Veteran did not have a history of recurrent urinary tract or kidney infections (UTI) or a kidney transplant or removal.  There was also insufficient evidence of tumors or neoplasms.  There was evidence of scarring which was not painful or unstable.  Lab results were mostly normal, although urine PH was high.
The November 2011 VA examiner rendered a diagnosis of nephrolithiasis since 1980.  The Veteran reported he did not experience urinary leakage or incontinence.  The Veteran did report a history of UTIs with one infection occurring over the past 12 months, but none required hospitalization, drainage, medication, or intensive management.  The Veteran had not been required to be on a special diet due to the stones.  He does experience colic attacks, but does not require invasive procedures.  The Veteran denies acute nephritis and history of hydronephrosis.  The examiner noted that the Veteran’s condition did not require invasive procedures or continuous medication for treatment.  There was insufficient evidence of renal dysfunction.  The examiner did not find urolithiasis or UTI.  There was also insufficient evidence of tumors or neoplasms, scars, or other pertinent physical findings.  Id. 
The Veteran is not under continuous medication treatment for his kidney stones.  The evidence of record does not indicate that the Veteran has had diet or drug therapy, or invasive or non-invasive procedures in excess of two times in any given year.  As such, a rating of 30 percent under DC 7508 or DC 7510 is not warranted.  There is insufficient evidence in the record that the Veteran has required catheter drainage, insufficient evidence of pyonephrosis (infection) or severe hydronephrosis (swelling of the kidney due to a build-up of urine) since the Veteran’s initial in-service treatment.  Accordingly, a rating of greater than 10 percent is not warranted under DC 7509.  38 C.F.R. § 4.115b, DC 7508, 7509, 7510.
Therefore, the currently assigned 10 percent properly contemplates the Veteran’s symptoms of occasional attack of colic.  A higher rating is denied.
TDIU
The issue of entitlement to TDIU has been raised in this case and will be considered by the Board.  See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). 
Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 
Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident.  38 C.F.R. § 4.16(a). 
“Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.”  Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  “Marginal employment shall not be considered substantially gainful employment.”  38 C.F.R. § 4.16(a) (2017). 
In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19. 
The Veteran has alleged that he cannot work due to his poor mental health.  See November 2016 Form 9.  The Veteran has not worked since 2008 and receives Social Security Disability.  See May 2011 Social Security Administration (SSA) Records.  He has a 12th grade education.  See October 2005 SSA Records.  The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis as of March 11, 2016.  The Veteran’s depression is rated at 50 percent disabling from March 11, 2016 and his combined rating is 70 percent.  See 38 C.F.R. § 4.16(a).  Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities from March 11, 2016.  
The Board notes that the Veteran reports his depression being additionally related to childhood trauma, the death of his two daughters, financial stress, and musculoskeletal pain.  See, e.g., June 2013 VA examination report and December 2010 SSA Records.  However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. 
In October 2011, Dr. R.G. completed a mental capacity assessment to determine the Veteran’s ability to do work-related activities on a day-to-day basis in a regular work setting resulting from psychological factors only.  See October 2011 Dr. R.G. mental capacity assessment.  According to the assessment, the Veteran would not have been able to complete a normal workday or workweek without interruptions from psychologically based symptoms.  Id.  Specifically, the Veteran was markedly limited in his ability to perform at a consistent pace and would be unable to respond appropriately to changes in the work setting.  Id.
As to the Veteran’s service-connected disabilities regarding his kidney, it was noted the Veteran was not able to do strenuous work due to his kidney trauma.  See March 2013 VA examination report.
The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity.  See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).  The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  
Here, the psychological symptoms made him unable to establish work relationships, caused concentration lapses, hindered his ability to effectively complete tasks, and would have caused frequent absences and work disruptions.  Additionally, the Veteran has only been able to find labor intensive jobs post service which have been hindered by his kidney disabilities.  As such, the Board finds the Veteran and his medical treatment providers credible as to his functional limitations attributable to his service-connected disabilities from March 11, 2016.  
Therefore, the Board finds that the Veteran’s service-connected disabilities at least as likely as not prevented him from obtaining and maintaining gainful employment from March 11, 2016.  Accordingly, resolving all doubt in the Veteran’s favor, the criteria for TDIU have been met, and the claim is granted.  See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). 
REASONS FOR REMAND
1. Entitlement to service connection for implanted cardiac pacemaker, claimed as a heart condition
The Veteran contends his pacemaker was implanted due to his enlarged heart that did not exist during his enlistment examination.  See August 2012 Notice of Disagreement and October 2011 Veteran Lay Statement.  Consistent with VA’s duty to assist, VA must provide a medical examination when there is evidence of (1) a current disability; (2) an in-service injury; (3) some indication that the claimed disability may be associated with the established injury; and (4) insufficient competent evidence of record for VA to make a decision.  See McClendon v. Nicholson, 20 Vet. App. 79, 84 (2006); see also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017).  The third prong, which requires evidence that the claimed disability or symptoms “may be” associated with the established event, has a low evidentiary threshold.  See 20 Vet. App. at 83.  
Here, the Veteran was diagnosed with and medicated for hypertension in 1995.  See September 2013 VA examination report.  In service, the Veteran sought treatment and received medication for hypertension.  See November 1978 service treatment records.  The Veteran has attributed his alleged “uncontrollable” blood pressure and hypertension to his current heart condition.  See October 2011 Veteran Lay Statement.  Therefore, the low evidentiary standard is met, and a VA examination is necessary to determine if the Veteran’s heart condition is related or attributable to his time on active duty.
 

2. Entitlement to TDIU prior to March 11, 2016
Prior to March 11, 2016, the Veteran did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a).  38 C.F.R. § 4.16(b) provides that all Veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director of the Compensation Service for consideration of an extra-schedular rating of unemployability.  The Board is prohibited from awarding extraschedular TDIU in the first instance.  Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015).  Accordingly, remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service.
Accordingly, the case is REMANDED for the following action:
1. Obtain an opinion from an appropriately qualified VA clinician to determine the nature and etiology of the Veteran’s heart condition.  It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion.
After the record review, including a copy of this remand, and examination of the Veteran, if deemed necessary, the clinician should identify all heart related disabilities.  For each identified disability, the clinician is asked to respond to the following inquiries:
Is it at least as likely as not that the Veteran’s heart condition was incurred in, or is otherwise related, to his time on active service, to include his in-service treatment for hypertension?
In rendering this opinion, the clinician is advised that the Veteran is competent to report his symptoms and history.  Such reports must be acknowledged and considered in formulating any opinion.  If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection.  The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions.
The clinician is to discuss whether the Veterans’ history and in-service treatment of hypertension relates to his heart condition.
The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.
If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered.  In so doing, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.
2. Refer the Veteran’s claim for TDIU prior to March 11, 2016 to the Director of the Compensation Service for extra-schedular consideration of entitlement to TDIU.
(Continued on the next page)
 
3. After the above development has been completed, readjudicate the claim.
 
DONNIE R. HACHEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Zheng, Associate Counsel 

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