Citation Nr: 18140923 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-25 634 DATE: October 9, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss on a schedular basis is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss on an extraschedular basis is remanded. FINDING OF FACT The Veteran’s hearing loss is manifested by level I hearing in the right ear and level I hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss on a schedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1967 to December 1967 and from May 1968 to August 1969. A hearing was not requested. The Board will not at this time assume jurisdiction over a claim of entitlement to an initial rating in excess of 10 percent for tinnitus. In July 2013, the RO granted service connection for tinnitus at an initial rating of 10 percent. The Veteran did not file a notice of disagreement (NOD). In April 2015, the Veteran filed a claim of entitlement to service connection for hearing loss. In June 2015, the RO granted service connection for bilateral hearing loss at an initial noncompensable rating. The Veteran timely filed an NOD listing “hearing loss” only. A statement of the case issued that addressed hearing loss only. The Veteran timely filed a Form 9 that describes how his hearing loss is impacting his ability to work and closes with the following statement: “I’m requesting a re-evaluation of my hearing loss claim of more than the 10% given.” Although the May 2016 VA Form 9 appears to argue for an increased initial rating for tinnitus, the Board will not at this time assume jurisdiction over this appeal because the July 2013 decision that assigned a 10 percent rating for tinnitus became final when an NOD was not timely filed. An official claim form for an increased rating for tinnitus has not been filed. 1. Entitlement to an initial compensable rating for bilateral hearing loss on a schedular basis On April 8, 2015, the Veteran filed a claim of entitlement to service connection for hearing loss. In June 2015, the RO granted service connection for bilateral hearing loss at an initial rating of 0 percent from the date of the claim. The Veteran is appealing the rating aspect of that decision. Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. To evaluate an individual’s level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85(b). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). The rating criteria provide for alternative ratings when an exceptional pattern of hearing is met. If the pure tone threshold at each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). The Veteran’s May 2015 VA audiological examination does not provide for a compensable rating for hearing loss. Pure tone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 40 65 70 LEFT 20 20 55 65 65 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz is 49 decibels in the right ear and 51 decibels in the left ear. Speech recognition ability using the Maryland CNC test is 100 percent in the right ear and 94 percent in the left ear. The audiological findings correspond to a level I hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, a designation of level I hearing in the right ear and level I hearing in the left ear yields a 0 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. Consideration has also been given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment, but this section is not applicable to the May 2015 examination findings. Pure tone threshold levels were neither 55 decibels or higher at 1000, 2000, 3000 and 4000 Hertz, nor were they 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a)–(b). Taken together, the Veteran is not entitled to an initial compensable rating on a schedular basis. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for bilateral hearing loss on an extraschedular basis is remanded. Referral for extraschedular consideration is warranted. To accord justice 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). 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). 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 his or her 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. Id. 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 his May 2016 VA Form 9, the Veteran states that he works in the life insurance business, where his hearing loss makes it difficult for him to understand people talking to him over the telephone. His hearing loss is “having a negative effect on [his] business and livelihood” because his hearing difficulties have resulted in potential customers hanging up when he cannot understand them. The Veteran is considered competent to testify regarding these symptoms because they are within the knowledge and personal observations of lay witnesses. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). There is no reason to question his credibility, particularly where, as here, he makes similar statements in his August 2015 correspondence and his July 2015 NOD. The first Thun element is satisfied, in that the Veteran’s non-compensable rating for hearing loss does not contemplate the impairment in earning capacity related to the inability to speak with customers on the telephone, which is one of the main activities of the Veteran’s occupation. The second Thun element is also satisfied, in that the impact on employment appears to be marked, based on the Veteran’s statements that he is losing prospective customers because he cannot understand them during telephone calls. Since the first two Thun prongs are satisfied, the Veteran’s claim must be remanded to the Under Secretary for Benefits or the Director, Compensation and Pension Service for extraschedular determination in the first instance. The matter is REMANDED for the following action: After completing any other development deemed appropriate in order to adjudicate the hearing loss claim, refer the issue to the Director, Compensation Service, for a determination in the first instance as to whether the assignment of an initial compensable rating an extraschedular basis is warranted. If the benefit remains denied, issue the Veteran and the Veteran’s representative a supplemental statement of the case and return the case to the Board. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel