Citation Nr: 18140977 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 18-42 212 DATE: October 9, 2018 ORDER An increased rating higher than 60 percent for bilateral hearing loss is denied. FINDING OF FACT Audiometric testing shows that the Veteran’s hearing loss is manifested by no more than Level IX hearing in the right ear and Level IX hearing in the left ear. CONCLUSION OF LAW The criteria for an increased rating higher than 60 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 1160, 5107 (2012); 38 C.F.R. §§ 3.383, 3.385, 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1956 to May 1960. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which increased the Veteran’s rating for bilateral hearing loss to 60 percent effective September 25, 2017. In a July 2018 rating decision, the RO granted an earlier effective date of August 29, 2017, the date the claim was received, for this increase based on clear and unmistakable error. 1. An increased rating higher than 60 percent for bilateral hearing loss The Veteran is seeking a higher rating for bilateral hearing loss. His current claim for an increased rating was received August 29, 2017. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Ratings for hearing loss disability 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, in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (Hz). 38 C.F.R. § 4.85, Diagnostic Code 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. Id. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. Id. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. As the evidence described below shows, neither of the patterns are present in this case. In describing the evidence, the Board refers to the frequencies of 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, as the frequencies of interest. VA treatment records show that the Veteran has hearing aids. Additionally, these records indicate that phone calls related to the Veteran’s care are answered by his wife or daughter due to his extreme hearing loss. An April 2017 VA treatment record notes severe to profound right ear hearing loss and moderate to severe left ear hearing loss. On the authorized audiological evaluation in September 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 80 85 90 105 105+ LEFT 70 80 85 95 100 Speech audiometry revealed speech recognition ability of 48 percent in the both ears. The Veteran described the impact of his hearing loss on ordinary conditions of daily live as having to continuously ask people to repeat themselves and lots of arguments with his wife over his hearing. Under Table VI, the both ears are assigned Roman numeral “IX.” Under Table VII, if the poorer ear is rated IX and the better ear is rated IX, then a 60 percent disability rating is warranted. See 38 C.F.R. § 4.85. Here, as the pure tone thresholds exceed 55 decibels at each of the four specified frequencies, the Board will also consider whether a higher rating is available under Table VIa. See 38 C.F.R. § 4.86. Under Table VIa, the right ear is assigned Roman numeral “IX” and the left ear is assigned Roman numeral “VIII.” Under Table VII, if the poorer ear is rated IX and the better ear is rated VII, then a 50 percent disability rating is warranted. See 38 C.F.R. § 4.85. In his April 2018 statement, the Veteran reported near-total deafness in both ears causing him to be functionally deaf. In his August 2018 VA Form 9, the Veteran indicated that he was unable to communicate in conversation. Based on the objective data of record, there is no support for assignment of a rating higher than 60 percent for the Veteran’s bilateral hearing loss. The VA audiogram did not reveal audiometric results sufficient to warrant a 70 percent evaluation under 38 C.F.R. § 4.85. During the pendency of this appeal, the Veteran’s hearing loss has been manifested by no more than Level IX hearing in the right ear and Level IX hearing in the left ear. A single level increase in either ear would be necessary to warrant a 70 percent evaluation, but hearing loss at that level is not reflected in the record. Therefore, entitlement to a higher evaluation for bilateral hearing loss is not warranted. The Veteran’s representative asked that the Board consider whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran’s disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran’s disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran’s exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director, Compensation Service, for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. All symptoms and the level of disability resulting from the Veteran’s bilateral hearing loss are addressed by criteria found in the rating schedule. The Veteran’s symptom of difficulty hearing, particularly conversations and telephone calls, is consistent with the objectively confirmed hearing impairment that is contemplated by the schedular rating criteria. While the Veteran has reported that this results in arguments with his wife about his hearing, he has not alleged any additional symptom, such as ongoing marital difficulties, associated with this. Therefore, the first prong of the Thun test is not satisfied and referral for extraschedular consideration is not warranted. For these reasons, the Board declines to remand this case for referral for extraschedular consideration. DAVID GRATZ Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Houbeck, Counsel