Citation Nr: 1421925	
Decision Date: 05/15/14    Archive Date: 05/29/14

DOCKET NO.  12-25 453	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Petersburg, Florida


THE ISSUE

Entitlement to an increased disability rating for bilateral hearing loss in excess of 40 percent.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)


ATTORNEY FOR THE BOARD

E. Blowers, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, had active service from August 1962 to November 1966.

This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the RO in St. Petersburg, Florida, which, in pertinent part, granted an increased disability rating of 40 percent for the Veteran's service-connected bilateral hearing loss.  In November 2010, the Veteran filed a notice of disagreement (NOD) as to the disability rating assigned.

In September 2013, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing in Washington, DC.  The hearing transcript has been associated with the record.  The Board has reviewed the physical claims file and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence.

Regarding the September 2013 Board hearing, when conducting a hearing a Veterans Law Judge must suggest that a claimant submit evidence on any issue material to substantiating a claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record.  Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010); 
38 C.F.R. § 3.103 (2013).  The Veterans Law Judge also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record.  Bryant, 23 Vet. App. at 497.  Here, during the Board hearing, the Veterans Law Judge specifically noted the issue on appeal.  Then, having heard the Veteran's evidence, the Veterans Law Judge sought to identify any pertinent evidence not currently associated with the record that might have been overlooked or was outstanding that might substantiate the claim.  Specifically, the Veterans Law Judge informed the Veteran that he may want to consider obtaining a private audiology examination.  Having suggested that the Veteran obtain potentially helpful medical documentation, the Veterans Law Judge substantially complied with the requirements of 38 C.F.R. § 3.103; Bryant at 496-97.

The Board notes that VA received additional evidence after the most recent supplemental statement of the case (SSOC); however, at the September 2013 Board hearing, and in a written document dated October 2013, the Veteran waived the right to an initial review of such evidence by the RO.  As such, the Board will proceed to consider the case.  See 38 C.F.R. § 20.1304(c) (2013).

The issue of entitlement to a separate compensable rating for a peripheral vestibular disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Specifically, a June 2011 VA treatment record assessed a significant vestibulopathy, which was noted by the VA examiner in the Veteran's medical history at the October 2012 VA examination.  Further, at the October 2012 VA examination, the Veteran advanced that he had vague off balance sensations.  As the Board does not have jurisdiction over this issue, it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2013).


FINDING OF FACT

For the entire increased rating period on appeal, the Veteran's bilateral hearing loss had manifested by no more than level VIII hearing in the right ear and level VII hearing in the left ear.


CONCLUSION OF LAW

For the entire increased rating period on appeal, the criteria for an increased disability rating for bilateral hearing loss in excess of 40 percent have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2013); 
38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.20, 4.25, 4.85, 4.86, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 
19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  

In June 2010, VA issued the Veteran a VCAA notice which informed of the evidence generally needed to support a claim for an increased disability rating, what actions he needed to undertake, and how VA would assist him in developing the claim.  The June 2010 VCAA notice was issued to the Veteran prior to the October 2010 rating decision granting an increased disability rating of 40 percent for bilateral hearing loss.  The increased rating issue was readjudicated in the July 2012 statement of the case (SOC), and the November 2012 SSOC; therefore, there was no defect with respect to timing of the VCAA notice.  See Pelegrini v. Principi, 
18 Vet. App. 112 (2004).

Regarding the duty to assist in this case, the Veteran received VA audiology examinations in August 2010 and October 2012.  The examination reports are of record.  To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA records convey that all appropriate testing was conducted in accordance with 38 C.F.R. § 4.85.  Further, under Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), VA examiners are required to address the functional effects, including the effects on occupational and daily functioning, of the Veteran's hearing loss.  The examiners at both the August 2010 and October 2012 examinations noted that the Veteran's hearing loss had a significant effect on his occupation and no effect on his usual daily activity.  

The August 2010 examination report reflects that the claims file was not reviewed as part of the examination; however, review of the claims file is not required for purposes of determining whether an increased disability rating is warranted, as the report reflects that the accurate facts were considered, necessary history and complaints were recorded, medical records were reviewed, and specific audiometric testing was conducted.  See VAOPGCPREC 20-95 (stating that the determination as to whether review of prior medical records is necessary in a particular case depends largely upon the scope of the examination and the nature of the findings and conclusions the examiner is requested to provide); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (the claims file is a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion, it is not a magical or talismanic set of documents).  Further, the claims file was reviewed at the October 2012 VA audiology examination.

The Veteran has submitted private audiology medical documentation which is of record.  All relevant documentation has been secured.  Relevant VA medical documentation is of record.  All relevant facts have been developed.  There remains no question as to the substantial completeness of the Veteran's appeal for an increased disability rating for bilateral hearing loss in excess of 40 percent.  
38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a).  Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above.  

Increased Disability Rating for Bilateral Hearing Loss

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  
38 U.S.C.A. § 1155.  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 (2013). 

Where there is a question as to which of two disability ratings shall be applied, 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.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 
38 C.F.R. § 4.25.  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14.  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 
6 Vet. App. 259, 261-62 (1994).  The Court has directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Hart, 21 Vet. App. at 511.  

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinsk, 1 Vet. App. 49 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  See Layno, 6 Vet. App. 465.  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998).

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).

Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent.  These evaluations 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 as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four.  See 38 C.F.R. § 4.85.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.  

Under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table IV or Table VIa, whichever results in the higher numeral.  Each ear is to be evaluated separately.  See 38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 
30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be evaluated to the next higher Roman numeral.  See 38 C.F.R. 
§ 4.86(b).

In Martinak, 21 Vet. App. at 455, the Court held that, in addition to providing objective test results, a VA audiology examination report must address the functional effects caused by a hearing disability because an extraschedular evaluation under 38 C.F.R. § 3.321(b) "does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted."  The Court also noted that VA's policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations by requiring VA audiologists to provide such information.  Id.

At the outset, the Board notes that the report of an April 2005 VA audiology examination conveyed that in March 2002 the Veteran was found to have a bilateral speech discrimination score of 92 percent, and in February 2005 his bilateral speech discrimination score was recorded as 76 percent.  The report conveys that at the April 2005 VA examination, the speech discrimination score was 72 percent bilaterally.  A January 2007 VA treatment note reflects the speech discrimination score was back up to 88 percent in the right ear and 84 percent in the left ear.  A December 2007 VA treatment record noted that the Veteran had "fair" speech recognition.  

At the August 2010 VA audiology examination, the examiner noted that a VA medical record dated June 2010 (the Board notes that the examiner likely meant the January 2010 VA treatment record) indicated that the Veteran had speech discrimination of 52 percent in the right ear and 48 percent in the left.  After Maryland CNC testing was performed at the August 2010 examination, the examiner found that the Veteran's speech discrimination was "too unreliable to score."  The examiner noted that the Veteran demonstrated better hearing one-on-one during the interview than what the speech discrimination score suggested.  The examiner went on to state that the Veteran should only be rated based on the pure tone results.

The report of the October 2012 VA audiology examination conveys that the Veteran had a speech discrimination score of 76 percent in the right ear and 72 percent in the left ear.  In October 2013, the Veteran received a private audiology examination.  The examination report conveys that the Veteran had speech discrimination scores of 48 percent in the right ear and 36 percent in the left ear. 

The Board notes that the Veteran is diagnosed with bilateral sensorineural hearing loss.  Sensorineural hearing loss is defined as deafness due to a lesion in either the cochlea (sensory mechanism of the ear), the vestibulocochlear nerve, the central neural pathways, or a combination of these structures.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 825 (32nd Ed. 2012).  As such, the Board would not expect to find such wild swings year-to-year in the Veteran's speech discrimination scores.

Throughout the pendency of this appeal, including at the September 2013 Board hearing, the Veteran has expressed dissatisfaction at the way hearing loss is evaluated for purposes of a VA disability rating.  In his November 2011 NOD, the Veteran explained that at the August 2010 VA audiology examination he made the conscious choice to disregard the instructions that had been given to him concerning the speech discrimination testing, and instead made the "personal decision to remain silent if I was not certain of the identification of the word that was presented."  At the September 2013 Board hearing, the Veteran explained that he did not believe testing in a soundproof booth while wearing a noise reduction headset reflected his hearing disability in the real world.  He does not feel that he should have to guess at the words he hears during testing, as in the real world you either understand the word said or you do not.  The Veteran feels that he was not being unresponsive, but that "it was a very accurate representation for me to sit there and do nothing when I wasn't sure of what the word said."  Based on his description of purposefully providing no response until he assures himself of a high degree of certainty as to what the word is, the Board finds that the Veteran disregarded the instructions as to the Maryland CNC speech discrimination testing at the both the VA and private examinations conducted throughout the course of this appeal.

Based on the heavily fluctuating speech discrimination scores, and the Veteran's own testimony that he has not followed the instructions of the Maryland CNC tests, the Board finds that it cannot rely on any of the speech discrimination scores discussed above.  As such, as recommended by the VA examiner at the August 2010 VA audiology examination, the Board will rate the Veteran's hearing loss using only the pure tone threshold averages under 38 C.F.R. § 4.85, Table VIa.  The Board notes that the Veteran's audiology examinations, both VA and private, reflect that the Veteran is entitled to a hearing impairment designation under Table VIa, as the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) for all examinations discussed below is 55 decibels or more; the only exception being the 50 decibel readings for the right and left ears at the October 2012 VA audiology examination, which, when considering all the evidence of record, the Board finds falls within the realm of reasonable doubt to warrant the use of Table VIa.  38 C.F.R. § 4.86. 

After a review of all the evidence, lay and medical, the Board finds that, for the entire rating period on appeal, the weight of the competent and probative lay and medical evidence demonstrates that a disability rating in excess of 40 percent for the service-connected bilateral hearing loss is not warranted.  The relevant evidence for this claim consists of the Veteran's lay statements, the VA audiology examination reports dated August 2010 and October 2012, and a private audiology examination dated October 2013.


The Veteran underwent a VA audiology examination in August 2010.  At that time, pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
55
80
90
105
LEFT
60
85
90
90

The Veteran was diagnosed with moderate to profound sensorineural hearing loss bilaterally.  

Based upon the results of the audiometric testing at the August 2010 VA audiology examination, a Roman numeral VII is designated for the right ear from Table VIa of 38 C.F.R. § 4.85 and a Roman numeral VII is designated for the left ear.  Intersecting the numeric designations to the applicable row and column for the right and left ear, a disability rating of 40 percent is derived from Table VII of 38 C.F.R. § 4.85.  The intersection point for these categories shows that the hearing loss does not exceed the levels contemplated for a 40 percent schedular rating; thus, this audiometric evidence does not support a finding of a disability rating in excess of 40 percent.

The Veteran was afforded another VA audiology evaluation in October 2012.  At that time, pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
50
70
100
105+
LEFT
50
65
90
95

The Veteran was diagnosed with mild to profound sensorineural hearing loss bilaterally.  

Based upon the results of the October 2012 VA audiology examination, a Roman numeral VII is designated for the right ear from Table VIa of 38 C.F.R. § 4.85 and a Roman numeral VI is designated for the left ear.  Intersecting the numeric designations to the applicable row and column for the right and left ear, a disability rating of 30 percent is derived from Table VII of 38 C.F.R. § 4.85.  The intersection point for these categories shows that the hearing loss does not exceed the levels contemplated for a 30 percent schedular rating; thus, this audiometric evidence does not support a finding of a disability rating in excess of 40 percent.	

VA also received a private audiology examination dated October 2013.  While the pure tone numerical ratings were not listed in the report, the Board is able to interpret the graphical representations of the audiometric data and convert it to numerical data in its role as a fact finder, as the graphical representations are clear.  See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing); see also Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise, and holding that the Board may not ignore such private audiometric test results that are of record).

As reflected in the graphical representation, pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
60
85
100
110
LEFT
65
75
90
90

The Veteran was diagnosed with moderate to profound bilateral sensorineural hearing loss.  The average loss in decibels is 89 for the right ear and 80 for the left ear.  

Based upon the results of the October 2013 private audiology examination, a Roman numeral VIII is designated for the right ear from Table VIa of 38 C.F.R. 
§ 4.85 and a Roman numeral VII is designated for the left ear.  Intersecting the numeric designations to the applicable row and column for the right and left ear, a disability rating of 40 percent is derived from Table VII of 38 C.F.R. § 4.85.  The intersection point for these categories shows that the hearing loss does not exceed the levels contemplated for a 40 percent schedular rating; thus, this audiometric evidence does not support a finding of a disability rating in excess of 40 percent.

The application of the rating schedule to the audiometric findings does not establish entitlement to a disability rating in excess of 40 percent for the entire rating period on appeal.  The weight of the competent and probative lay and medical evidence of record is against a rating for bilateral hearing loss in excess of 40 percent for the entire rating period.  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application.  See 38 U.S.C.A. 
§ 5107; 38 C.F.R. § 3.102.

Extraschedular Consideration

The Board has also evaluated whether the issue should be referred for consideration of an extra-schedular rating for bilateral hearing loss under 38 C.F.R. § 3.321(b)(1). 

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is:  A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).
 
The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating.  Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran'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 veteran's disability picture and that picture has attendant thereto 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 of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extra-schedular rating.  Thun v. Peake, 22 Vet App 111 (2008). 

With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular rating criteria inadequate.  The schedular rating criteria provide for disability ratings based on audiometric evaluations, to include speech discrimination and pure tone testing.  

At the outset, the Board addresses the Veteran's primary extraschedular contention, that the pure tone and Maryland CNC testing criteria do not adequately encompass the real-world consequences of impaired hearing.  This contention amounts to a disagreement with the established regulatory criteria for rating hearing loss disability and, more particularly, with the testing established by VA regulation to measure the loss of speech recognition.  See 38 C.F.R. §§ 4.85, 4.86.  This schedular rating criteria was legally established to rate all veterans' hearing loss disabilities (average occupational impairment), and is not subject to waiver in this Veteran's case simply because he disagrees with the nature of the testing itself.  Such a contention is a mere disagreement with the established schedular rating criteria, and is not a contention of irregularity or that such regular testing procedures or examination procedures were not followed.  Additionally, such contention does not amount to an assertion of impairment that is not contemplated by the schedular rating criteria; it is only a contention that the objective rating criteria should not be applied to this Veteran.  Disability rating criteria is based on average occupational impairment.  See 38 C.F.R. § 4.1 (providing that, "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability").

Further, the Board notes that the Veteran has suggested that the current hearing loss testing criteria be replaced with a system in which a veteran is asked to repeat 10 different sentences read to him or her by a VA examiner, with a 10 percent disability rating for hearing loss being assigned for each sentence repeated incorrectly; i.e., if the veteran were only able to repeat 2 of the 10 sentences correctly, he would be assigned a hearing loss disability rating of 80 percent.  Such a subjective, self-rating system would not be based on the "average impairment in earning capacity" and ignores the regulatory concept the duly promulgated schedular rating criteria "are considered adequate to compensate for considerable loss of working time."  38 C.F.R. § 4.1 (2013).  Such criteria proposed by the Veteran would also elevate one piece of lay evidence, the Veteran's own, subjectively reported estimate of loss of speech recognition, above all other evidence including examination reports and findings in examination reports (see 38 C.F.R. § 4.2 (2013)), so as to make it determinative of the rating.  Such criteria would preclude consideration of all the evidence of record, which is required by multiple statutes and regulations.  See 38 U.S.C.A. § 7104(a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case").Additionally, the Board does not have the authority to ignore the schedular rating criteria, but must apply the schedular criteria in this case.  See 38 U.S.C.A. § 7104 (West 2002) (Board's authority is to limited to deciding "questions" of law and fact in a particular case or "matter" that is presented to it).   
The Veteran's contentions regarding change in regulatory rating criteria for rating hearing loss disabilities that he presented before the Board are misplaced, as the Veteran is advocating for change of the regulatory rating criteria that can be made only by Congress or the VA Secretary.  The Board is bound by the current regulations and instructions of the VA Secretary, which include the criteria for rating hearing loss disabilities that is found at 38 C.F.R. §§ 4.85, 4.86, 4.87.  See 38 U.S.C.A. § 7104(c).  The Board has no such authority to legislate or to promulgate new regulatory criteria implementing statutes duly enacted by Congress.  38 U.S.C.A. § 510 (West 2002) (providing that the VA Secretary has the authority to prescribe all rules and regulations necessary and appropriate to carry out the laws).  Furthermore, not even the VA Secretary, much less the Board, has authority to implement such an entirely new rating scheme as advocated by the Veteran without following the notice and comment procedures for promulgating regulations.  See Disabled American Veterans  v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (invalidating a regulation allowing for Board development of evidence because it was otherwise inconsistent with the statutory and regulatory scheme for VA compensation process). 

The Veteran's primary disagreement is with the Maryland CNC speech discrimination testing, which is part of the schedular rating criteria for rating hearing loss.  The Veteran has credibly advanced that the functional effects of his bilateral hearing loss disability include some interference with the ability to carry on normal conversations (both business and personal), to correctly hear the speech on television, in theaters, on the radio, and on the telephone, and that he has significantly greater difficulty understanding women.  Such loss of ability to discern words in conversation, and the loss of ability to recognize some words in conversation, is specifically measured by speech recognition testing and rated by using the Maryland CNC speech discrimination test results.  

When asked to evaluate his own hearing loss at the September 2013 Board hearing, the Veteran conveyed being able to understand 5 percent of speech in a restaurant, 30 percent while in a quiet room with normal tone of conversation without his hearing aid, 90 percent while in a quiet room with normal tone of conversation with his hearing aid, and 60 percent overall while wearing his hearing aids.  Notwithstanding the Veteran's contention that the Maryland CNC test should not be used, he admits to difficulty in arriving as a percentage assessment of loss of speech discrimination, and only suggests reliance on an entirely self-reported and subjective evaluation as to the degree of loss of speech discrimination.  Such entirely subjectively reported scheme entirely divorced from the concept is inconsistent with the cornerstone rating concept that ratings are to be based on "average impairment in earning capacity."  See 38 C.F.R. § 4.1 (2013).  

While the Veteran is now retired, he testified that while he was working his hearing impairment negatively affected his credibility because the condition would often cause him to fail to hear or to respond inappropriately to clients and coworkers.  His hearing disability also caused him to become discouraged and lessened his motivation to go out and earn.  Further, the Veteran has argued that there is a difference between the ability to hear and the ability to understand, and, as he is unable to understand most conversations, he contends that he is functionally deaf.  

While the Board is sympathetic to the Veteran's contentions, 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.  The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994).  Accordingly, as the Veteran was rated under Table VIa of 38 C.F.R. § 4.85 in the instant decision, which considers that speech discrimination may not be an accurate measurement of a veteran's hearing loss and attempts to account for real world hearing impairment, the functional impairments advanced by the Veteran have been specifically contemplated in the regulations and schedular rating criteria.   
    
The Board recognizes and has considered the Veteran's contentions regarding the VA testing criteria and his reported functional impairment.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which were demonstrated in this case, and as measured by both audiology testing and speech recognition testing.  Speech recognition, as measured by the Maryland CNC testing, is a schedular rating criterion that recognizes an inability to understand certain words in conversation, and in turn, the impact of that impaired ability on functioning, both daily (social) and occupational.  As discussed above, while the Board had to discount the speech discrimination scores recorded throughout the course of this appeal due to the Veteran's conscious decision not to follow the proper Maryland CNC testing instructions, that does not mean the Veteran's advanced functional impairments are not contemplated by the schedular rating criteria.  The Veteran's complaints, other than the testing standard itself, concern diminished auditory acuity and speech recognition.  Diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria.  The scores represent a rating made on the worst possible objective measure of performance.  The Veteran does not have any symptoms from the service-connected hearing loss disability that are unusual or are different from those contemplated by the schedular rating criteria.

The rating criteria for rating hearing loss disability under 38 C.F.R. § 4.85 considers both speech discrimination under the Maryland CNC and the pure tone threshold average.  The schedular rating criteria also provide for ratings based on exceptional hearing loss patterns which were shown, and rated, in this case.  See 38 C.F.R. § 4.86.  In the absence of additional exceptional factors associated with the Veteran's bilateral hearing loss, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

At the September 2013 Board hearing, the Veteran testified that he was retired.  Specifically, he testified that he was semi-retired all his life and that he began to cut back when his Social Security benefits began four years prior.  There was no indication that he retired due to his service-connected disabilities.  Further, in a February 2010 statement, the Veteran specifically stated that he is not unemployable.  As such, the Board need not consider the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  

Entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU rating under 38 C.F.R. § 4.16(b), although having some similar criteria such as questions of the degree of interference of impairment, are based on different and non-overlapping criteria.  See Kellar v. Brown, 6 Vet. App. 157, 162 (1994).  An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular rating criteria for a particular disability are inadequate to compensate for the average impairment of earning capacity due to that disability.  In contrast, 
38 C.F.R. § 4.16 requires a determination that a particular veteran be rendered unable to secure or follow a substantially gainful employment, and such determination as to unemployability is based on all the service-connected disabilities rather than a single disability.  See VAOPGCPREC 6-96; see also Johnson v. Shinseki, 26 Vet. App. 237, 244-45 (2013) (holding that entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) does not require VA to consider multiple service-connected disabilities on a collective or combined basis when determining whether such an evaluation is appropriate; instead, consideration 

under 38 C.F.R. § 3.321(b)(1) is a disability-by-disability determination that requires VA to determine whether extraschedular referral or assignment of an extraschedular evaluation is appropriate based on consideration of each service-connected disability individually).   


ORDER

For the entire rating period on appeal, a higher disability rating for service-connected bilateral hearing loss in excess of 40 percent is denied.




____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs