Citation Nr: 1800449 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-14 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a rating in excess of 20 percent for service-connected bilateral hearing loss, including on an extraschedular basis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Noh, Associate Counsel INTRODUCTION The Veteran had active military service from July 1970 to November 1979. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. When the case was previously before the Board, the claim of entitlement to a rating in excess of 10 percent for bilateral hearing loss was remanded in May 2014 for additional development. In December 2016, the Board denied the Veteran's claim of entitlement to a rating in excess of 20 percent for bilateral hearing loss. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In October 2017 the Court issued an Order granting a Joint Motion for Remand, which partially remanded the Board's December 2016 decision in order to address extraschedular consideration. FINDINGS OF FACT 1. For the entire appeal period, the Veteran had no worse than level III hearing in the right ear and no less than Level VII hearing in the left ear. 2. The level of severity and symptomatology of the Veteran's service-connected bilateral hearing loss does not present such an exceptional disability picture that the available scheduler evaluations for that disability are inadequate. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for bilateral hearing loss have not been met, including on an extraschedular basis. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, and 5107; see also 38 C.F.R. §§ 3.102 and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. In this case, VA satisfied its duty to notify the Veteran by way of a January 2010 letter. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate her claim, what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. The Veteran received all essential notice, had a meaningful opportunity to participate in the development of her claim, and was not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further, neither the Veteran, nor his representative, alleged prejudice with regard to notice. Accordingly, the VA satisfied its duty to notify. In regard to the duty to assist, the Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, outpatient treatment records, and military personnel records. No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records have been fulfilled with respect to the issues on appeal. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded VA medical examinations in February 2010, March 2011, and July 2014, with an addendum opinion added in December 2014. Based on the examinations, including an addendum opinion, and the records, VA medical examiners were able to provide adequate opinions. Accordingly, the Board determines that the VA's duty to provide a medical examination and to obtain a medical opinion has been satisfied. In conclusion, the Board finds that the duty to assist in this case is satisfied since VA has obtained all relevant identified records and provided the Veteran with VA medical examinations. 38 C.F.R. § 3.159(c)(4). Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the Veteran. II. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant 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). Evaluations of defective hearing range from noncompensable to 100 percent for service-connected hearing loss. 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. To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The regulations provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, 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. Each ear will 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 puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. The assignment of disability ratings for hearing impairment are arrived at by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Treatment records obtained in conjunction with the Veteran's claim reveal that at the time of a September 2009 audiological consultation, she was noted to have speech discrimination of 76 percent in the right ear and 52 percent in the left ear. The Veteran was reported to have normal sloping to moderate sensorineural hearing loss in the right ear and normal sloping to severe hearing loss in the left ear. In accordance with her request for an increased rating for her hearing loss, the Veteran was afforded a VA examination in February 2010. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: right ear 30, 35, 45, and 50, and left ear 65, 65, 65, and 65, at 1000, 2000, 3000, and 4000 Hertz, respectively. Speech audiometry testing revealed speech recognition ability of 94 percent in the right ear and of 70 percent in the left ear. The examiner rendered diagnoses of normal to moderate sensorineural hearing loss with excellent word recognition score in the right ear and moderate to moderately-severe sensorineural hearing loss with good word recognition score in the left ear. In her December 2010 notice of disagreement, the Veteran indicated that the nature and symptoms of her condition had changed. She now had hearing loss in both ears. She stated that her hearing loss was evident, as stated in her records, and was more severe than in previous years. She noted that her records now reflected that she had moderate-severe hearing loss in her left ear and a moderate hearing in her right ear. She stated that she had problems with hearing normal conversations. The changes in her hearing loss affected her articulation and interaction with her colleagues, co-workers, family, and friends, as well as her self-esteem. She indicated these changes had a great impact on her work and day to day living. She noted that the hearing loss had altered her life. The functional impairment and disability caused her to become angered, frustrated, and aggravated. She stated that she tried to fill in missing words that she could not hear; could not adjust to listening to one voice without being distracted by other voices or noise, which was difficult to do during office meetings or family gatherings; lip read; and watched facial expressions and gestures, listening to distinguish different kinds of sounds such as ringing of the doorbell, telephone, cars pulling up, sirens, closing and opening of doors, and the list went on. She noted that the hearing loss had caused emotional distress as well because she knew the future held more hearing loss. In a May 2011 statement, the Veteran's supervisor indicated that he had supervised the Veteran for several years. He noted that during group meetings or on one-on-one conversations, the Veteran talked loud and at times became agitated and flustered in conversations. She crossed her arms, pushed her chair back, and became disengaged in conversations. He noted that now that she had hearing aids he could tell that her hearing had improved. He indicated that though the hearing aids made an improvement, the Veteran still had problems hearing. When in attendance at meetings, she would ask her colleagues and staff members to speak up and to look her in direction. He noted that everyone was mindful not to talk with their hands in front of their mouths and to look at her when talking to her or in her direction. Many times though it was difficult for staff to do because there were 10-18 or more people in the meeting. He reported that a member might be presenting information using PowerPoint and turn their back to the Veteran when pointing or emphasizing a chart or other detailed information. He said that on many occasions she would ask for information to be repeated two or three times. He also reported that if she attended a large meeting, seminar, or conference with large groups and was not able to sit near the front of the room near the speakers, she did not get the full benefit of the information shared. He indicated that she complained that it was difficult to hear the speakers during conferences because of attendees talking, sneezing, coughing, and the hotel employees clanging dishes causing too much background noise. He stated the noise upset her because it was difficult for her to hear presenters' information. He noted that he could tell this stressed her. He indicated that over the last few years, he noticed that the Veteran did not get as involved in conversations or activities during meetings and events. He stated that when this was brought to her attention she said that she often felt isolated and frustrated because she could not understand what was said and was embarrassed asking people to repeat themselves over and over. He reported that it was very clear that the Veteran's hearing loss had been a life changing experience and that she was doing her best to cope. In a May 2011 letter, the Veteran's daughter indicated that she noticed in junior high school that her mom could not hear very well. She indicated that this continued through her high school years. She was 26 at the time of the writing. She noted that since her mother had been wearing hearing aids, she understood conversations better than before. She stated that she believed her mom felt more confident now with joining in conversations as they sat around the dinner table, watching a movie together, or during their holiday gathering. She noted that while the aids seem to help her mother hear better, she still had difficulty hearing. She knew this bothered her immensely. She would get very frustrated, aggravated, and angry about not being able to hear. She saw her experiencing these emotions when she was in an area where there is noise in the background, such as a TV playing, music in the background, dishwasher or washing machine on, or other groups of people talking in the same room at the same time. She noted that even with the hearing aids, something as simple as riding in the car with the windows down was now a task for her, because she could not hear the radio or converse in a conversation because of the noise. She reported that even talking on the phone was not easy for her. In her letter, the Veteran's daughter stated that in years past, she and her mother enjoyed going to malls and restaurants to shop, eat, or socialize. She noted that finding a quiet spot to relax and socialize was out of the question. She indicated that it was difficult for her mother to hear what was being said with all the loud noise and distractions. She noted that the hearing loss had taken the pleasure from doing these things. She stated that the expressions she saw on her mother's face when they were together were fear and anger. She noted that interacting with loved ones was one of the most cherished activities that a person wanted to participate in and that losing your hearing could strain family and personal relationships. She stated that she could not imagine the feelings or emotions her mother was experiencing due to her hearing loss, and, quite frankly, she hoped she never had to experience them. In her opinion, it would be a horrible experience. She noted that her mother had always been in very good health and was not the type of person who thought of herself as less capable than anyone else. To see her go through this was very hard for her. She stated that to increase their communication and lessen stress, they would both have to navigate new waters. She indicated that her mother had a lot of challenges in front of her. The Veteran also submitted a letter from C. R., a fellow co-worker, who, like the Veteran's supervisor, noted the difficulties the Veteran had with her hearing and how it affected her interaction with other employees. She stated that while the hearing aids helped, the Veteran still struggled with hearing as well as adjusting to wearing the hearing aids. She indicated that she believed it was the loss of hearing that frustrated her and made her less tolerant of others. She noted that most people in the office were aware that the Veteran had a hearing problem and tried to communicate with her in an appropriate manner. At the time of an August 2013 VA audiological consult, the Veteran reported having bilateral hearing loss for the last 30 years, worse on the left side. Puretone threshold testing revealed normal sloping to moderate sensorineural hearing loss in the right ear and normal sloping to severe sensorineural hearing loss in the left ear. Speech discrimination was noted to be 84 percent in the right ear at 75 decibels and 38 percent in the left ear at 90 decibels. A July 2014 VA audiological evaluation revealed pure tone thresholds, in decibels, as follows: right ear 35, 40, 55, and 55, and left ear 70, 70, 75, and 75, at 1000, 2000, 3000, and 4000 Hertz, respectively. Speech audiometry testing revealed speech recognition ability of 83 percent in the right ear and of 60 percent in the left ear. The examiner rendered a diagnosis of bilateral sensorineural hearing loss. As to functional impact of hearing loss, the examiner indicated that the Veteran reported having to use bilateral hearing aids to improve her hearing ability. In a December 2014 addendum opinion, the VA examiner corrected the Veteran's speech recognition score to 82 percent from 83 percent for the right ear. The February 2010 VA audiological evaluation shows the average decibel level reading was 40 in the right ear and 65 in the left ear. Combining this with 94 percent speech discrimination in the right ear and 70 percent in the left ear results in Level I hearing in the right ear and Level V hearing in the left ear using Table VI. Applying these results to the Table VII indicates that a noncompensable rating. However, as the Veteran's decibel level loss is higher than 55 at each applicable Hertz level in the left ear, Table VIa is applicable, resulting in Level I hearing in the right ear and Level V hearing in the left ear. Applying these results to Table VII also demonstrates that a noncompensable rating is warranted. The July 2014 VA audiological evaluation shows the average decibel level reading was 46 in the right ear and 73 in the left ear. Combining this with 82 percent speech discrimination in the right ear and 60 percent in the left ear results in Level III hearing in the right ear and Level VII hearing in the left ear using Table VI. Applying these results to the Table VII indicates that a 20 percent rating is warranted. However, as the Veteran's decibel level loss is higher than 55 at each applicable Hertz level in the left ear, Table VIa is also applicable, resulting in Level III hearing in the right ear and Level VI hearing in the left ear. Applying these results to Table VII indicates that a 10 percent rating is warranted. Thus, the higher rating of 20 percent using Table VI is applicable. The Veteran is competent to describe the effects of her hearing loss on her daily functioning. The Board finds her statements to be credible. The Board also finds the statements received from the Veteran's co-workers and family members to be credible. However, the descriptions of the Veteran's service-connected hearing loss must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. The Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349 . Thus, as to the schedular evaluation of the Veteran's hearing loss, the Board has no discretion and must predicate its determination on the basis of the results of the audiology studies of record. The Board has considered whether a staged rating under Hart, supra, is appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that her symptomatology has been stable for this disability throughout the appeal. Therefore, assigning a staged rating for such disability is not warranted. Moreover, the Board has considered whether the issue of entitlement to a total disability based on individual employability due to service-connected disabilities (TDIU) was reasonably raised by the record in this case. Neither the Veteran nor the evidence suggests unemployability due to the service-connected bilateral hearing loss, and the Veteran has reported maintaining full-time employment. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, as the issue of entitlement to a TDIU is not reasonably raised by the record, it is not part of the rating appeal. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for an increased rating for bilateral hearing loss on a schedular basis. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, and her increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. III. Extraschedular Considerations The Board has considered whether the evaluation of the Veteran's service-connected bilateral hearing loss should be referred for extraschedular consideration. See 38 C.F.R. § 3.321 (b) (2017); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, an assigned rating may be adequate to address the average impairment in earning capacity caused by the disability, but not completely account for the Veteran's individual circumstances. Thun, 22 Vet. App. at 114. When an assigned rating is deemed inadequate, the case may be referred for extraschedular consideration. Id. In Thun, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. This first element is a threshold element and requires the Board to compare the severity and symptomatology of the claimant's service-connected disability with the rating schedule for that disability. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Id. Here, referral for extraschedular consideration is not warranted for the Veteran's service-connected bilateral hearing loss. A comparison of the Veteran's bilateral hearing loss symptoms and the relevant rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedule standards." 38 C.F.R. § 3.321 (b). During the rating period on appeal, the Veteran's symptoms have been characterized by decreased hearing. These symptoms are compensated and accounted for in the Veteran's schedular rating. See Thun, 22 Vet. App. at 115. Turning to the relevant evidence as discussed at length above, in May 2011, multiple lay statements were submitted in which the Veteran's colleagues and daughter essentially reported that they had to speak very loudly, slowly, repeat themselves, stand very close to, and/or face the Veteran in order for her to understand what they were saying. The Veteran also reported similar hardships stating that her bilateral hearing loss affects her articulation and interaction with her colleagues, coworkers, family, and friends. Specifically, the Veteran stated that she has difficulty understanding and hearing in the presence of background noise. She would read lips and watch facial expressions to compensate for her bilateral hearing loss. The Veteran also stated that her bilateral hearing loss caused emotional distress as she would become angry, frustrated, and aggravated due to her condition. A review of the treatment records show that the Veteran's hearing acuity has indeed decreased over the years. However, despite this finding, the Veteran has predominantly denied having dizziness, vertigo, and equilibrium problems. In fact, the Veteran admitted that she rarely had dizziness, imbalance, or pressure in her ears. In a February 2010 letter, the Veteran stated after she received hearing aids for both ears she was able to "hear so much better." She no longer rode around in the car with the radio on high. She was able to hear everything in a "'normal'" way. In early 2014, the Veteran experienced momentary hearing loss, but it was determined that her hearing aids needed repair and was not sign of further hearing loss. A March 2014 magnetic resonance imagining scan of the internal auditory canal showed no cerebellopontine angle pathology. The Board also notes that subsequent treatment records do not document complaints of headaches associated with hearing aid use and that the Veteran has not otherwise reported experiencing that symptom during the course of this claim. The level of severity and symptomatology of the Veteran's service-connected bilateral hearing loss, as outlined above, is not in dispute. Rather, the question is whether that level of severity and symptomatology is adequately contemplated by the applicable rating schedule. The Board finds that it is. As already discussed, the Veteran has reported having difficulty understanding what people are saying unless they are speaking loudly, are close to her, and are standing in front of her. She has also reported that people must repeat themselves in order for her to hear them and that her ability to hear is particularly affected if background noise is present. The Board finds that these effects of hearing loss are adequately considered by the schedular rating criteria. Those criteria specifically provide for ratings based on all levels of hearing loss, and such symptoms and effects relate to diminished hearing acuity and speech recognition, which is generally the foundation of the schedular criteria. Further, to the extent that the Veteran and her friends and relatives have described her anger, frustration, and aggravation stemming from her difficulty hearing in certain circumstances, the Board finds that these symptoms are facets of the very communication difficulties contemplated by the rating schedule. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Further, even if the Veteran's bilateral hearing loss were not adequately contemplated by the rating schedule, there is nothing in the record to indicate that the disability on appeal causes frequent hospitalization or impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). There is no evidence whatsoever that the Veteran has been frequently hospitalized, or hospitalized at all, for her bilateral hearing loss. With regard to marked interference with employment, the Veteran claimed that her bilateral hearing loss impacts her ability to work in terms of maintaining conversational speech, telephonic communication, and understanding group presentations. However, a review of the records shows that the Veteran experienced significant improvement in her hearing when she was fitted for hearing aids for both ears. In fact, the Veteran stated that her hearing was normal. A review of treatment records also shows that subsequent complaints of hearing loss was a result of faulty hearing aids more than actual decrease in her hearing acuity. The Board finds that there is no evidence in the record that the Veteran's hearing loss has caused marked interference with employment. Rather, her supervisor clearly explained in his May 2011 letter that both the Veteran and her colleagues were making efforts to address the Veteran's hearing difficulties. Similarly, her colleague noted that the Veteran's hearing had improved with the use of bilateral hearing aids. In view of the foregoing, the Board therefore has determined that entitlement to an increased rating for bilateral hearing loss, including on an extraschedular basis, is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to a rating in excess of 20 percent for bilateral hearing loss, including on an extraschedular basis, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER A rating in excess of 20 percent for bilateral hearing loss on a schedular basis is denied. Referral of the issue of entitlement to an increased rating for bilateral hearing loss for consideration of an extraschedular rating is not warranted; the appeal is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs