Citation Nr: 1805012 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-10 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a rating in excess of 10 percent for bilateral hearing loss on an extraschedular basis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Lewis, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from April 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted an increased rating of 10 percent for the Veteran's bilateral hearing loss, effective July 20, 2012 (the date of claim). The Veteran filed a Notice of Disagreement (NOD) in August 2013 disagreeing with the 10 percent rating assigned by the March 2013 rating decision. He did not disagree with the effective date. A Statement of the Case (SOC) was issued in January 2014, and a substantive appeal was received in February 2014. The RO also issued a Supplemental SOC (SSOC) in June 2014. In October 2015, the Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. In a January 2016 decision, the Board denied the Veteran's claim for entitlement to a rating in excess of 10 percent for bilateral hearing loss. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2017 decision, the Court set aside the Board's January 2016 decision with respect to extraschedular consideration and remanded the matter to the Board for further proceedings consistent with their decision. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, as well as the Veteran's Virtual VA paperless claims file. FINDINGS OF FACT There is no exceptional or unusual feature associated with the Veteran's hearing loss disability. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss on an extraschedular basis are not met. 38 C.F.R. §§ 3.102, 3.321(b)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veteran's Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). A letter sent to the Veteran in September 2012 provided compliant notice. Regarding the duty to assist, all relevant evidence necessary for an equitable resolution of the issues on appeal have been identified and obtained, to the extent possible. The evidence of record includes reports of October 2012 and May 2014 VA examinations; a private audiological opinion from Dr. C.L.C. of Hearing Solutions; VA treatment records; evidence submitted by the Veteran, including his lay statements; and the transcript of the October 2015 Travel Board hearing before the undersigned. The Veteran was afforded VA audiological examinations in October 2012 and May 2014. The Veteran has not challenged the adequacy of the October 2012 examination. The Board has previously found that the evaluation was adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and it described the claimed disabilities in sufficient detail to allow the Board to make a fully informed determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that VA must provide an examination that is adequate for rating purposes). During the October 2015 Travel Board hearing, the Veteran argued that the May 2014 VA audiological evaluation was "rigged." Specifically, the Veteran asserted that the speech discrimination test was "unfair" because it tested his right and left ears at 80 and 75 decibels respectively, which allowed him to hear better. The Veteran submitted information from the American Speech Language Hearing Association to support his contention that 60 decibels is the level for typical conversation and that the May 2014 examination was inadequate because it tested his speech recognition at a higher decibel level. The Veteran also challenged the examination's adequacy on the ground that the equipment used was "antique." The Veteran asserted that he should be afforded another VA examination to properly evaluate his worsened hearing acuity. According to VA's Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations, the "purpose of speech recognition testing is to obtain the patient's best performance under optimum, controlled, and reproducible conditions. Therefore, live voice presentation of speech stimuli is not allowed. The speech recognition score is not intended to simulate real-world performance." Id. (emphasis original). The handbook additionally explains that normal speech recognition performance is 94% or better for a full (50 word) list, and that if a patient's speech recognition is worse than 94% after presentation of a full list, then a modified performance-intensity function must be obtained to determine best performance. Accordingly, the starting level for a speech recognition test is set at 40 decibel and then the threshold decibels are adjusted either upward or downward until a maximum performance level is achieved. Based on the foregoing, the Board previously found that the 80 and 75 decibel thresholds reported in the Veteran's May 2014 VA audiological evaluation merely represented his maximum performance level, and were not indicative of the volume in the hearing test being set too high. Notably, the handbook advises that "[p]resentation levels [are] not [to] exceed the patient's level of discomfort or 100 [decibel hearing loss], whichever is lower." The Veteran's presentation levels of 80 and 75 decibels falls within this guideline. Id. at 9-10. As to the Veteran's contention regarding the examiner's use of old equipment, the Board has noted that a review of the May 2014 VA examination report showed that a comprehensive evaluation was conducted. There was nothing to indicate that the examination was incomplete or insufficient. Having found the May 2014 VA audiological evaluation adequate for rating purposes, the Board found that a remand for another VA audiological evaluation was not necessary. Significantly, the Veteran did not submit any evidence showing or suggesting that his hearing acuity had worsened since his last VA audiological evaluation in May 2014. See 38 C.F.R. § 3.327 (a). Therefore, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159 (c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. Thus, VA's duty to assist is met. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. II. A rating in excess of 10 percent for bilateral hearing loss on an extraschedular basis The January 2016 Board decision determined that under applicable schedular rating criteria an evaluation in excess of 10 percent was not warranted for the Veteran's service-connected bilateral hearing loss. See generally 38 U.S.C. § 1155; 38 C.F.R. Part 4, §§ 4.1, 4.7, 4.85 and 4.86. In his appeal to the Court, filed in October 2016, the Veteran did not contend that the Board erred in its determination that an evaluation in excess of 10 percent for bilateral hearing loss under the applicable schedular rating criteria was incorrect. Rather, the Veteran asserted that the Board failed to provide adequate reasons or bases when it declined to refer his bilateral hearing loss claim for extraschedular consideration. Specifically, he argued that the Board insufficiently explained why his disability picture did not entail "marked interference with employment." He further argued that the Board insufficiently explained why the collective impact of all his service-connected disabilities did not warrant extraschedular consideration and that the Board in fact may have employed an erroneous standard in its analysis. The Court in its July 2017 decision set aside the Board's January decision only with respect to extraschedular consideration. Accordingly, the Board's analysis will focus solely on that issue. The Veteran reported having difficulty hearing his family members in conversation, high-pitched or soft spoken voices in general, difficulty hearing sirens, difficulty hearing the television or radio, and an inability to hear over background noise. He further asserted that he experienced difficulty sleeping, anger problems, social isolation, and had safety concerns associated with his difficulty hearing sirens. The Veteran argued in particular that his difficulty sleeping, anger problems, social isolation, and safety concerns constituted conditions outside the functional effects contemplated by the schedular criteria. The Veteran also asserted that he cannot drive because he cannot hear approaching vehicles. In its decision, the Court determined that when evaluating the adequacy of the schedular criteria, the Board's discussion of extraschedular consideration was inadequate for failure to discuss these matters. Further, the Court determined that it could not discern the Board's reasoning with respect to either of the prongs in Thun v. Peake, noting that the Board stated that certain symptoms of record did not themselves establish an exceptional disability picture, while making no finding whether other symptoms that were concededly not contemplated by the schedular ratings, established such an exceptional disability picture. Additionally, the Court found that the Board did not offer any reasoning in support of its conclusion that the evidence of record did not demonstrate marked interference with employment. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation 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 Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. See also 38 C.F.R. § 3.321 (b)(1). In the context of bilateral hearing loss and extraschedular consideration, the Court held in Doucette v. Shulkin, that [t]he [schedular] rating criteria for hearing loss contemplate the functional effects of decreased hearing 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. However, as the rating criteria do not otherwise discuss, let alone account for, other functional effects, such as dizziness, vertigo, ear pain, etc., the Court cannot conclude that the rating schedule, on its face, contemplates effects other than difficulty hearing or understanding speech. 28 Vet.App. 366, 369 (2017). In this regard, the Board notes that the Veteran's symptoms of difficulty hearing his family members in conversation, high-pitched or soft spoken voices in general, difficulty hearing sirens, difficulty hearing the television or radio, and an inability to hear over background noise all constitute symptoms specifically contemplated by the schedular criteria. These symptoms all constitute a hearing loss that results in an inability to hear or understand speech or to hear other sounds in various contexts, as described by the Court in Doucette. Furthermore, in the July 2017 decision, the Court noted in footnote 2 that Doucette is somewhat ambiguous with respect to the difficulty hearing sirens. The Court noted that in applying its holding to the facts of that case, the Doucette Court stated that difficulty "locating the source of sounds" was among the symptoms contemplated by the rating criteria. See Doucette at 371-372. The Court noted that at his Board hearing, the Veteran stated that his difficulty with hearing sirens was that he could not identify the location of these sounds. Thus, the Court noted that it was unable to conclude that the Board clearly erred in finding that his difficulty hearing sirens was contemplated by the schedular criteria. The Board again finds that the Veteran's difficulty hearing sirens and his ability to locate the source of such sounds are symptoms that are clearly contemplated by the schedular criteria. As mentioned above, the Veteran also reported feeling angry and having trouble sleeping as a result of his hearing loss. He further reported feelings of social isolation and safety concerns associated with his difficulty hearing sirens, noting that he no longer drives because of this fear. The Board previously acknowledged that the schedular criteria does not contemplate trouble sleeping and anger and found that the evidence of record did not establish marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular scheduler standards. The Court found that the Board did not adequately explain the rationale behind this finding. The Board notes that the evidence of record is silent as to any frequent periods of hospitalization resulting from the Veteran's hearing loss disability and the Veteran has not asserted that he has had any such periods of hospitalization. However, the Veteran has asserted that he had a marked interference with employment. In particular, the Veteran reported that he stopped working because he could not understand customers on the phone. The May 2014 VA examiner also opined that the functional effects of the Veteran's hearing loss impacted his ability to work. The Board does not discount or dismiss the difficulties that the Veteran's hearing disability may have presented at his job. Nonetheless, to the extent that the Veteran's inability to hear or understand people on the phone has affected his employment, such symptoms are contemplated by the schedular criteria as discussed in the above cited passage from Doucette. The Board additionally notes that there is no indication in the record that the Veteran's only means of employment would involve his use of a telephone or that there are not reasonable accommodations that could be made to compensate for his hearing disability and allow him to work. Returning to the Veteran's assertions that he suffers from difficulty sleeping, anger problems, social isolation and safety concers, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. The Board notes that the Veteran is also service-connected for tinnitus rated at 10 percent disabling from December 27, 2007. Additionally, the Veteran is now service-connected for depressive disorder, secondary to his service-connected bilateral tinnitus, with an evaluation of 100 percent, effective October 20, 2015. This evaluation was granted in part based upon findings that the Veteran suffered from chronic sleep impairment, unprovoked irritability with periods of violence, suspiciousness, panic attacks, and total occupational and social impairment. The Veteran had previously attributed symptoms such as difficulty sleeping, anger problems, social isolation, and safety concerns to his bilateral hearing loss, and argued that such symptoms were not contemplated by the schedular criteria for hearing loss and thus warranted consideration on an extraschedular basis. To the extent that the Court found that the Board did not adequately address these symptoms in its previous decision on the Veteran's claim for extraschedular consideration, such discussion is now moot given the Veteran's service connection for depressive disorder. The Veteran's depressive disorder accounts for all additional symptoms reported by the Veteran as well as the functional effect of his symptoms on his ability to work. If the Board were to now grant extraschedular consideration for hearing loss, the Board would in effect be compensating the Veteran twice for the same symptomatology because his feelings of anger, difficulty sleeping, social isolation, and safety concerns are all already contemplated by the rating criteria for depressive disorder and compensated by his 100 percent evaluation. In this case, even after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), the Board finds that no unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical. See Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, referral for extraschedular consideration for the Veteran's bilateral hearing loss is not warranted. Thus, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321 (b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a rating in excess of 10 percent for bilateral hearing loss on an extraschedular basis is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs