Citation Nr: 1800067 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-12 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial compensable rating for left ear hearing loss prior to March 27, 2012. 2. Entitlement to an initial compensable rating for bilateral hearing loss from March 27, 2012. REPRESENTATION Veteran represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty in United States Army from February 1978 to September 1993, to include service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In his April 2011 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge at the RO. He subsequently withdrew his hearing request in February 2015. See September 2016 Statement of Accredited Representative in Appealed Case. In February 2015, the Veteran testified at a hearing at the RO before a Decision Review Officer (DRO). A transcript of the hearing is of record. While the Veteran did not perfect an appeal of the issue of entitlement to an increased rating for right ear hearing loss, the RO adjudicated that issue in an August 2016 Supplemental Statement of the Case (SSOC) along with the other issue on appeal. Thus, the issue is on appeal and properly before the Board. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). FINDINGS OF FACT 1. Prior to March 27, 2012, the Veteran has had, at worst, Level II hearing acuity in the left ear. His right ear hearing loss was not service-connected at this time. 2. Since March 27, 2012, the Veteran has had, at worst, Level II hearing acuity in each ear. CONCLUSIONS OF LAW 1. Prior to March 27, 2012, the criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). 2. Since to March 27, 2012, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. §§ 4.85, 4.86, DC 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks compensable ratings for his right and left ear hearing loss, which have been evaluated under the criteria set forth in the VA Schedule for Rating Disabilities. These criteria are intended to represent the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities, which must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). Here, the Veteran has been assigned a noncompensable ratings for right ear and left ear hearing loss throughout the appeal. As will be detailed below, the Board finds that the noncompensable evaluations should not be disturbed; therefore, staged ratings are not warranted. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 CFR 4.85, Table VI, Table VII. Table VI correlates the average pure tone sensitivity threshold (derived from the sum of the 1000, 2000, 3000, and 4000-hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds (in decibels) and of speech discriminations (in percentages). Level I represents essentially normal acuity, and numeric level XI represents profound deafness. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. When impaired hearing is service connected in only one ear, then the nonservice-connected ear will be assigned a numeric designation of I unless the service-connected hearing loss is at least 10 percent disabling and there is hearing impairment in the non service-connected ear under 38 C.F.R. § 3.385. 38 U.S.C. § 1160(a)(3); 38 C.F.R. §§ 3.383(a)(3), 4.85(f). Prior to March 27, 2012 Controlled speech discrimination testing (Maryland CNC) and pure tone audiometry testing results from VA audiology examinations conducted in December 2009 and October 2011 demonstrate no more than Level II hearing loss in the left ear and the nonservice-connected right ear is assigned a numeric designation of I, which warrants a 0 percent rating. See 38 C.F.R. § 4.85, Table VI, Table VII (Diagnostic Code 6100). A pattern of exceptional hearing loss is also not demonstrated, as puretone thresholds were not 55 dB or more at 1000, 2000, 3000 or 4000 Hertz or 30 dB or less at 1000 Hertz and 70 dB or more at 2000 Hertz during either examination. 38 C.F.R. § 4.86. Since to March 27, 2012 Controlled speech discrimination testing (Maryland CNC) and pure tone audiometry testing results from VA audiology examinations conducted in July 2013, November 2014, and July 2016 fail to demonstrate more profound hearing loss than Level II in each service-connected ear, which warrants a 0 percent rating. See 38 C.F.R. § 4.85, Table VI, Table VII (Diagnostic Code 6100). A pattern of exceptional hearing loss is also not demonstrated, as puretone thresholds were not 55 dB or more at 1000, 2000, 3000 or 4000 Hertz or 30 dB or less at 1000 Hertz and 70 dB or more at 2000 Hertz during the examinations. 38 C.F.R. § 4.86. Extraschedular Rating The Veteran specifically raised the issue of entitlement to extraschedular consideration for right and left ear hearing loss. See February 2015 DRO hearing at 5. The Veteran testified at his DRO hearing and to the VA examiner's that the functional impact of his hearing loss includes difficulty understanding speech with background noise, use of hearing aids, not hearing anything in a crowded room, ringing in the right and left ears, and difficulty hearing when people are behind him. There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). 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. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the Veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted"). 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 marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims (Court) explains in detail what functional impacts of hearing loss are contemplated by the rating criteria. See Rossy v. Shulkin, No. 16-0720 (December 13, 2017). With respect to the first prong of Thun, the evidence in the instant appeal does not establish an exceptional disability picture as to render the schedular criteria inadequate. His reported ringing in the right and left ears is contemplated in the 10 percent rating separately assigned to diagnosed tinnitus. Regarding his other hearing complaints, namely difficulty hearing speech with background noise, the use of hearing aids, difficulty hearing in a crowded room, and difficulty hearing conversations when people are behind him. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high-pitched sounds. The ability of the Veteran to understand people is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns that were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing. In Doucette, the Court highlighted recent regulatory changes to the rating criteria addressing hearing loss, particularly its recognition of exceptional patterns of hearing loss for circumstances that "do not reflect the true extent of difficulty understanding speech in the everyday work environment, even with the use of hearing aids" and the "extreme handicap in the presence of any environmental noise, [which] often cannot be overcome by the use of hearing aids." See Doucette, 28 Vet. App. 366, 368 (quoting 59 Fed. Reg. 17, 295-6 (Apr. 12, 1994)). The Court determined that: in light of the plain language of 38 C.F.R. § 4.85 and 4.86, as well as the regulatory history of these sections, the rating criteria for hearing loss contemplate the functional effects of decreased haring and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure. Thus, 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. See Id. at 369. The Board finds that the VA examiners addressed the Veteran's functional hearing impairment by noting the difficulties that he experienced and discussed the impact of his hearing loss on the ordinary conditions of daily life, as well as with employment, which has been considered in evaluating his service-connected hearing loss disabilities under the VA Rating Schedule. The rating criteria are therefore adequate to evaluate the right and left ear hearing loss, and referral to the Director of Compensation Service for consideration of an extraschedular rating is not warranted. ORDER Prior to March 27, 2012, a compensable rating for left ear hearing loss is denied. Since March 27, 2012, a compensable rating for bilateral hearing loss is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs