Citation Nr: 1756645 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 09-36 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a compensable disability rating for left ear hearing loss on an extraschedular basis. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from August 1979 to May 1981 and from April 1984 to October 1985. He also served in the U.S. Army Reserve, to include on a period of active duty for training (ACDUTRA) from May to August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied, in pertinent part, the Veteran's claim for a compensable disability rating for left ear hearing loss. The Veteran disagreed with this decision in April 2009. He perfected a timely appeal in September 2009. A videoconference Board hearing was held in December 2012 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. After remanding this appeal to the Agency of Original Jurisdiction (AOJ) for additional development in July 2013 and in June and September 2014, the Board denied the Veteran's claim for a compensable disability rating for left ear hearing loss, to include on an extraschedular basis, in June 2015. The Veteran, through his attorney, and VA's Office of General Counsel appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Partial Remand (Joint Motion) in March 2016. Both parties to the Joint Motion argued that the Board's June 2015 decision should be vacated and remanded only to the extent that it denied a compensable disability rating for left ear hearing loss on an extraschedular basis. The Court granted the Joint Motion later in March 2016, vacating and remanding only that portion of the Board's decision which denied a compensable disability rating for left ear hearing loss on an extraschedular basis. Having reviewed the record evidence, and because it is bound by the Court's March 2016 Order granting the Joint Motion, the Board finds that the issue on appeal should be characterized as stated on the title page of this decision. Pursuant to the terms of a VA Form 21-22a, "Appointment of Individual as Claimant's Representative," executed by the Veteran in March 2016, the representation of the Veteran's private attorney is limited to the issue of entitlement to a compensable disability rating for left ear hearing loss on an extraschedular basis. In February 2017, the Board again remanded the currently appealed claim to the AOJ for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDING OF FACT The record evidence shows that, throughout the appeal period, the Veteran's service-connected left ear hearing loss does not present such an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization or otherwise indicate that the symptomatology associated with this disability is not contemplated within the relevant rating criteria found in the Rating Schedule. CONCLUSION OF LAW The criteria for a compensable disability rating for left ear hearing loss on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.85, 4.86, Tables VI and VII, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that the symptomatology attributable to his service-connected left ear hearing loss is exceptionally or unusually disabling and interfered with or prevented his employment that he is entitled to a compensable disability rating on an extraschedular basis. Factual Background and Analysis The Board finds that the preponderance of the evidence is against granting the Veteran's claim for a compensable disability rating for left ear hearing loss on an extraschedular basis. See generally 38 C.F.R. § 3.321 (2017). As noted, the Veteran contends that the symptomatology attributable to his service-connected left ear hearing loss has been exceptionally disabling and interfered with or prevented him from being employed throughout the appeal period such that he is entitled to a compensable disability rating on an extraschedular basis. Id. The record evidence does not support his assertions regarding his entitlement to an extraschedular rating for service-connected left ear hearing loss. It shows instead that, throughout the appeal period, the symptomatology attributable to his service-connected left ear hearing loss is contemplated within the normal rating criteria and did not interfere with or prevent his employment such that an extraschedular rating is warranted. The Board notes initially that the zero percent scheduler evaluation currently assigned for the Veteran's service-connected left ear hearing loss is not inadequate. This finding is in accord with the August 2017 decision denying entitlement to an extraschedular rating for service-connected left ear hearing loss issued by the Director, Compensation Service pursuant to § 3.321. Id. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of this service-connected disability throughout the appeal period. See 4.85, 4.86, Tables VI and VII, DC 6100. In other words, this rating adequately compensates the Veteran for the level of disability attributable to his service-connected left ear hearing loss throughout the appeal period. The Board observes that multiple VA audiograms currently of record are of poor reliability, according to the VA examiners who conducted them during the appeal period. Given this medical determination of poor reliability in the Veteran's audiometric testing results obtained in December 2007, January 2009, June 2012, June 2014, and in June 2017, none of this evidence was used in evaluating the Veteran's extraschedular claim. The Board next observes that the disability ratings for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The record evidence shows that the Veteran has not experienced compensable disability due to his service-connected left ear hearing loss at any time during the appeal period. For example, and as the Board noted in its June 2015 decision, the audiometric testing results obtained in December 2014 (the only valid audiometric testing results then of record) equated to a zero percent rating for the Veteran's service-connected left ear hearing loss. See Board decision dated June 23, 2015, at pp. 16. And, as noted elsewhere, in March 2016, the Court affirmed the Board's decision with respect to the findings regarding increased scheduler ratings for the Veteran's service-connected left ear hearing loss. The record evidence dated since March 2016 also does not support granting the Veteran's claim for a compensable disability rating for left ear hearing loss on an extraschedular basis. It shows instead that the Veteran still does not experience compensable disability as a result of his service-connected left ear hearing loss. As noted elsewhere, following the most recent VA examination for hearing loss in June 2017, the VA examiner stated that the audiometric testing results obtained at that time were not considered reliable for rating purposes due to unreliable responses given by the Veteran during such testing. This examiner also stated in June 2017 that, because the audiometric testing results were unreliable for rating purposes, she could not provide the opinion requested in the Board's February 2017 concerning whether the additional symptomatology alleged by the Veteran to be related to his service-connected left ear hearing loss (complaints of pain, discomfort, and roaring in the left ear) was, in fact, related to this disability. This examiner provided a full and complete rationale for her inability to provide the requested opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). It is unfortunate that the Veteran's June 2017 VA examination was unreliable and these results prevented the VA examiner from providing the requested opinion concerning whether additional symptoms reported by the Veteran were related to his service-connected left ear hearing loss. The Board notes that the Veteran's hearing subsequently was evaluated on VA audiology outpatient treatment in July 2017 with valid or reliable audiometric testing results again indicating the lack of compensable disability due to his service-connected left ear hearing loss. The Board finds it highly significant that, contrary to his previous reports of significant additional disability which he attributed to his service-connected left ear hearing loss (complaints of pain, discomfort, and roaring in the left ear), the Veteran only reported experiencing occasional ear pain or sensitivity in both ears and occasional dizziness to the VA audiologist who tested his hearing in July 2017. The VA audiologist stated in July 2017 that tympanometry showed normal middle ear function bilaterally. The Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 35 45 50 LEFT 85 85 60 60 65 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 48 percent in the left ear. The VA audiologist concluded in July 2017 that these results showed a "significant increase in thresholds" from 2013. Recognizing that service connection is not in effect for the Veteran's right ear hearing loss and applying the rating criteria to these results still equates to a zero percent (non-compensable) rating for his service-connected left ear hearing loss under DC 6100, however. See 4.85, 4.86, Tables VI and VII, DC 6100. During the examination, the Veteran complained of dizziness that tends to occur when standing and lasts seconds at a time. He denied a rotational feeling to the dizziness. The Board has considered whether this complaint merits a separate rating. As guidance, VA regulations address peripheral vestibular disorders. Under diagnostic code (DC) 6204, a 30 percent rating is warranted with evidence of dizziness and occasional staggering. Occasional dizziness merits a 10 percent rating. Under a note to this DC, "Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined." Upon examination which included multiple tests, it was determined that the Veteran did not have and never has been diagnosed with an ear or peripheral vestibular condition. His gate was normal as was the Romberg test and Dix Hallpike test (Nylen-Barany test) for vertigo. Based upon findings that show no peripheral vestibular disorder, a separate compensable rating for the complaints of occasional dizziness is not warranted. Additionally, the Veteran complained of constant pain on the left side during the June 2017 VA examination. The notes that this symptom was not in the ear but on the left side. Service connection is if effect for a bilateral temporomandibular joint (TMJ) condition and is in receipt of a 20 percent rating. When examined in February 2017, the Veteran complained of no pain on either side of his face. The single complaint of left sided pain has not been related to the service connected left ear disability as after thorough examination of that ear, not basis for the pain was found. Pain alone is not compensable. See generally, Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization due to the Veteran's service-connected left ear hearing loss which supports assigning a compensable disability rating on an extraschedular basis. The Veteran has contended that he is unemployable as a result of his service-connected left ear hearing loss. The Board acknowledges that VA determined in May 2010 that the Veteran's service-connected disabilities, in combination, made his achievement of a vocational rehabilitation goal "currently infeasible" at that time. The Board also notes that VA's Vocational Rehabilitation and Employment (VR&E) division noted in its May 2010 determination that the Veteran reported that his hearing loss prevented him from passing a Department of Transportation (DOT) examination "which limits [his] employment opportunities." VR&E focused its discussion of the infeasibility of the Veteran achieving his vocational goal in May 2010, however, on his reported increasing psychotic symptoms and advised him to return to VR&E for additional assessment "should his mental health improve and remain stable." It does not appear that the Veteran returned to VR&E for additional vocational rehabilitation services after May 2010. The Board finds it highly significant that VR&E did not find that the symptomatology attributable to the Veteran's service-connected left hearing loss precluded his employment in May 2010. Instead, as noted, VR&E concluded in May 2010 that the impact of this disability only limited the Veteran's opportunities for employment. This VR&E determination persuasively suggests that the Veteran's service-connected left ear hearing loss did not interfere markedly with his employment at that time. The record evidence dated subsequent to May 2010 also does not suggest that the service-connected left ear hearing loss interfered markedly with the Veteran's employment, although it appears that he was unemployed throughout the appeal period. The Board notes that the Veteran currently is in receipt of Social Security disability benefits due to demyelinating disease and a variety of psychiatric disorders. Although the Social Security Administration (SSA) found that the Veteran experienced a variety of "severe" disabilities, to include left ear hearing loss with tinnitus, when it awarded him SSA disability benefits in September 2011, the Board notes that VA is not bound by any SSA determination. (The Board also notes parenthetically that the Veteran does not experience any compensable disability - much less "severe" disability -as a result of his service-connected left ear hearing loss for VA purposes, as outlined above). Critically, the record evidence does not indicate that the Veteran was hospitalized for treatment of his service-connected left ear hearing loss at any time during the appeal period. In summary, the Board finds that the criteria for a compensable disability rating for left ear hearing loss on an extraschedular basis are not met. ORDER Entitlement to a compensable disability rating for left ear hearing loss on an extraschedular basis is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs