Citation Nr: 1803079 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 05-25 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an extraschedular evaluation for bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder secondary to service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1951 to July 1961. His awards include the Korean Service Medal, the United Nations Service Medal, and the National Defense Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In February 2008 the Veteran testified at a videoconference hearing before a Veterans Law Judge of the Board (VLJ). A transcript of the hearing is of record. The VLJ who held the February 2008 hearing is no longer employed by the Board. The Veteran did not respond to an April 2017 clarification letter as to whether he wanted a hearing before another VLJ. As such, the Board assumes that the Veteran does not want another Board hearing; therefore, the Board may proceed with adjudication of the issue on appeal. In March 2008, the Board remanded the claim of entitlement to an evaluation in excess of 30 percent for bilateral hearing loss for additional development and adjudicative action. While the claim was pending in remand status, the RO granted stated ratings for the Veteran's hearing loss disability (40 percent from November 22, 2006, and 80 percent from June 18, 2008). In April 2009, the Board denied evaluations in excess of those assigned by the RO, which included a determination that referral for an extraschedular evaluation was not warranted under the provisions of 38 C.F.R. § 3.321(b)(1) (2017). The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In a May 2011 Memorandum Decision, the Court found that the Board's reasons and bases for its conclusion that referral for extraschedular consideration was not warranted were inadequate, and vacated the Board's decision in that regard. See slip opinion, pp. 2-3. The Court affirmed the Board's denial of ratings in excess of those assigned by the RO. Id. at 6. Lastly, the Court found that the Board's failure to address a total rating for compensation based upon individual unemployability was not in error. Id. at 4-5. On March 3, 2017, the RO granted entitlement to individual employability (TDIU), effective June 18, 2008. Therefore, no further discussion is necessary in regards to the Veteran's claim for entitlement to a TDIU Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that a second notice of disagreement must be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the effective date); see also 38 C.F.R. § 20.200 (2017). In January 2012 and February 2016, the Board remanded the current issues for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board subsequently sought a Veterans Health Administration (VHA) expert opinion in August 2017 and received a response in September 2017. The case was returned to the Board for further appellate review. 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) (2012). FINDINGS OF FACTS 1. The schedular rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech that the Veteran experiences with driving, working, communicating, and venturing into public. 2. The level of severity and symptomatology associated with the Veteran's service-connected bilateral hearing loss does not present such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. 3. The Veteran's acquired psychiatric disorder was caused by his service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for referral of the Veteran's service-connected bilateral hearing loss for extraschedular consideration have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b), 4.85, 4.86 (2017). 2. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran maintains that the symptoms associated with his bilateral hearing loss present an exceptional disability picture and warrant referral to the Under Secretary for Benefits for consideration of the assignment of an extraschedular rating. The record reveals medical evidence and lay evidence documenting the Veteran's complaints regarding the functional impact of his hearing loss on his daily living, including ear pain and infections, dizziness or loss of balance, and impaired social functioning. Following careful review of the record, the Board finds that the schedular rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech that the Veteran experiences with driving, working, communicating, and venturing into public, and that referral for extraschedular consideration is not warranted. However, the Board finds that the Veteran's hearing loss results in impaired social function for which service-connection on a secondary basis is warranted. The Board addresses that claim separately below. I. Extraschedular Rating The Board considered whether an extraschedular rating is warranted for the service-connected bilateral hearing loss during the relevant period on appeal. 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 extraschedular 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) (2017). The United States Court of Appeals for Veterans Claims (Court) has clarified that 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 and Pension 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. A. Functional Impact on Daily Living 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 criteria inadequate. The schedular rating criteria for rating hearing loss provide for disability ratings based on audiometric evaluations, to include speech discrimination and pure tone testing. The Court has held that these criteria contemplate the functional effects of difficulty hearing and understanding speech. See Doucette, 28 Vet. App. at 371. Here, the symptoms associated with the Veteran's hearing loss are wholly contemplated by the schedular rating criteria. The evidence of record in this regard reflects that the Veteran's hearing loss disability has manifested in difficulty hearing conversations, driving, walking, working, and venturing into public. In February 2008 testimony before the Board, the Veteran explained that his difficulty hearing while driving and being out and about poses a safety risk because he is not able to hear sirens or horns blow. The record otherwise reflects that he also experiences associated tinnitus, for which he is separately service connected. 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 him, and are standing in front of him. He has also reported that people must repeat themselves in order for him to hear them and that his 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. 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. 25,202 (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. 17,295 (Apr. 12, 1994). For the foregoing reasons, the Board finds that the Veteran's functional impairment due to hearing loss, to specifically include difficulty hearing in background or environmental noise that is not improved by hearing aids, is a disability picture that is specifically and adequately contemplated by the current schedular rating criteria. As a result, the first Thun element has not been satisfied and referral of this issue for consideration of an extraschedular evaluation is not warranted. B. Ear Pain and Infections The Veteran has also asserted that he experiences ear pain and infections, warranting the assignment of extraschedular rating. Functional impairment due to ear pain and ear infections are not symptoms that are contemplated in the rating schedule, but are specifically indicated by the rating schedule to be separately ratable disabilities. These symptoms are recognized in the rating schedule as symptoms of otitis media (DC 6200 or DC 6201), cholesteatoma (DC 6200), mastoiditis (DC 6200), or Meniere's syndrome (DC 6205), which are separately compensable disabilities distinct from hearing impairment (DC 6100) (and not to be combined with hearing impairment in the case of Meniere's syndrome), and would be rated in accordance to the schedular criteria under the applicable Diagnostic Code, provided it is present in the Veteran and determined to be service connected. The question, then, issue is whether the above stated symptoms are related to the service-connected bilateral hearing loss so as to be considered in determining whether extraschedular referral might be warranted. Following the June 2016 remand, the Board sought a VHA expert opinion in August 2017. In the September 2017 VHA opinion, the expert found that the Veteran's documented "ear pain is due to external otitis (in the ear canal) and cellulitis." The expert further explained that Veteran's sensorineural hearing loss cannot cause otitis externa because otitis externa is a bacterial infection of the external ear canal. The expert opined that the Veteran's ear pain and ear infections are not at least as likely as not related to his bilateral hearing loss. As there is no competent evidence in the record to suggest that symptoms of ear pain or ear infections are related to the service-connected bilateral hearing loss, the Board is precluded from finding such a relationship exists. See 38 C.F.R. § 4.14 (2016) ("[T]he use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation. . . [is] to be avoided."). In order for the Veteran to obtain a rating for the symptoms of ear pain or ear infections, either together with or separate from hearing loss, as otitis media (DC 6200 or DC 6201), cholesteatoma (DC 6200), mastoiditis (DC 6200), or to obtain a rating for Meniere's syndrome (DC 6205) in lieu of hearing loss, service connection must first be established for these symptoms or the disability that accounts for these symptoms. For these reasons, the Board finds that the record does not establish that Veteran's bilateral hearing loss is so exceptional or unusual as to warrant referral for extraschedular consideration. C. Dizziness or Loss of Balance The Veteran has also asserted that he experiences dizziness and loss of balance associated with his hearing loss disability. These symptoms also are not contemplated in the rating schedule to be symptoms associated with hearing loss, but are specifically indicated by the rating schedule to be separately ratable disabilities. These symptoms are recognized in the rating schedule as symptoms of cholesteatoma (DC 6200), peripheral vestibular disorders (DC 6204), or Meniere's syndrome (DC 6205), which are separately compensable disabilities distinct from hearing impairment (DC 6100) (and not to be combined with hearing impairment in the case of Meniere's syndrome), and would be rated in accordance to the schedular criteria under the applicable Diagnostic Code, provided it is present in the Veteran and determined to be service connected. The Board has considered whether the reported dizziness and loss of balance are associated with the Veteran's service-connected hearing loss but concludes that they are not. The evidence in this regard reflects that following the June 2016 remand, the Veteran was afforded a VA examination in July 2016. There, the VA examiner opined that the Veteran's symptoms of dizziness are less likely than not proximately due to the result of the Veteran's bilateral hearing loss. For support, the examiner merely stated "[t]he dizziness occurred after his military service and was the result of ear infections." As the examiner failed to offer a rationale for his opinion, the Board finds that that July 2016 is inadequate and offers little probative value. Stefl v. Nicholson, 21 Vet. App. 120 (2007). In August 2017, the Board sought a VHA expert opinion. In the September 2017 VHA opinion, the expert found "no indication that the veteran was evaluated or treated for 'dizziness or loss of balance'" in service. The expert noted that some treatment records documented the Veteran experiencing intermittent dizziness, but the expert highlighted that those progress notes did not characterize the dizziness as vestibular in nature. In fact, a December 2003 VA treatment record characterized the Veteran's complaints of dizziness as "orthostatic dizziness." As such, the expert opined that the Veteran's dizziness and loss of balance is not at least as likely as not related to his bilateral hearing loss. As there is no competent evidence in the record to suggest that symptoms of dizziness or balance problems are related to the service-connected bilateral hearing loss, the Board is precluded from finding such a relationship exists. See 38 C.F.R. § 4.14 (2016) ("[T]he use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation. . . [is] to be avoided."). II. Secondary Service Connection In contrast to the above findings, the Board concludes that the record demonstrates a basis of entitlement to service-connection for an acquired psychiatric disorder, secondary to his bilateral hearing loss. Service connection may be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995); El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that an examiner's finding that a Veteran's alcoholism was "related to" factors other than his service-connected PTSD was not sufficient to permit the Board to conclude that the PTSD did not aggravate his alcoholism). In May 2008, the Veteran's spouse reported that the Veteran's bilateral hearing loss disability was taking "an emotional toll." She explained that the Veteran would not go out to public places. A December 2008 VA audiology consultation report documented the Veteran's reports of feeling frustrated and embarrassed. More recently, in January 2016 and November 2017, the Veteran's representative asserted that the Veteran's bilateral hearing loss is affecting his social and emotional life. The September 2017 VHA expert opinion stated that "the Veteran clearly has impairment in social function related to his hearing loss . . . ." In viewing the evidence most favorable to the Veteran, the Board finds that that the Veteran's service-connected bilateral hearing loss disability causes impairment of social function akin to that associated with psychiatric disorders, such that secondary service connection is warranted. 38 C.F.R. § 3.310. ORDER 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. Service connection for an acquired psychiatric disorder secondary to bilateral hearing loss is granted. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs