Citation Nr: 18141166 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-22 282 DATE: October 9, 2018 ORDER A compensable rating for bilateral hearing loss is denied. REMANDED Whether new and material evidence has been received to reopen a claim for service connection for gastroesophageal reflux disease (GERD) is remanded. Whether new and material evidence has been received to reopen a claim for service connection for uterine fibroids is remanded. Whether new and material evidence has been received to reopen a claim for service connection for headaches is remanded. Whether new and material evidence has been received to reopen a claim for service connection for panic disorder is remanded. FINDINGS OF FACT 1. The findings of an August 2013 VA examination result in a designation of no worse than Level II hearing in the right ear and Level I hearing in the left ear. 2. The findings of a February 2018 VA examination result in a designation of no worse than Level I hearing in the right ear and Level II hearing in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION While the Agency of Original Jurisdiction (AOJ) may have reopened and denied on the merits the claims for service connection, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the AOJ is properly reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, the Board must initially determine on its own whether there is new and material evidence to reopen the claims before proceeding to the merits of the claims. If the Board finds that no new and material evidence has been received, then that is where the analysis ends, and what the AOJ may have determined is irrelevant. 1. A compensable rating for bilateral hearing loss 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 resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). The Veteran’s bilateral hearing loss has been rated as 0 percent (noncompensable) under Diagnostic Code 6100. 38 C.F.R. § 4.85 (2018). Ratings for hearing loss are determined in accordance with findings obtained on audiometric evaluation. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. Hearing tests are to be conducted without hearing aids, and the results of the testing are applied to Table VI and Table VII. 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies of 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. 38 C.F.R. § 4.86(a) (2018). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b) (2018). An August 2013 VA audiological examination revealed hearing threshold levels in decibels of 45, 50, 45, and 45 in the right ear and 40, 40, 45, and 40 in the left ear at 1000, 2000, 3000, and 4000 Hertz respectively. The puretone average was 46 in the right and 41 in the left. Maryland CNC speech recognition scores were 86 percent in the right and 94 percent in the left. The Veteran reported being unable to make out words; needing to raise the television volume that is too loud for others; having trouble communicating with co-workers, customers, and her supervisor; and having to talk too loudly for others. Applying the criteria for rating hearing loss to the findings of the VA audiometric evaluation results in a designation of no worse than Level II hearing in the right ear and Level I hearing in the left ear based on application of the reported findings to Table VI. These findings warrant a 0 percent rating under Table VII. Audiometric evaluation does not show puretone thresholds meeting the definition of an exceptional pattern of hearing impairment in either ear. A February 2018 VA audiological examination revealed hearing threshold levels in decibels of 35, 45, 50, and 50 in the right ear and 35, 45, 45, and 45 in the left ear at 1000, 2000, 3000, and 4000 Hertz respectively. The puretone average was 45 in the right and 43 in the left. Maryland CNC speech recognition scores were 92 percent in the right and 90 percent in the left. The Veteran reported difficulty understanding speech in areas of background noise. Applying the criteria for rating hearing loss to the findings of the VA audiometric evaluation results in a designation of no worse than Level I hearing in the right ear and Level II hearing in the left ear based on application of the reported findings to Table VI. These findings warrant a 0 percent rating under Table VII. Audiometric evaluation does not show puretone thresholds meeting the definition of an exceptional pattern of hearing impairment in either ear. Given the above, the criteria for a higher 10 percent rating are not met. Thus, a compensable rating for bilateral hearing loss is not warranted. The Board acknowledges, and has considered, the Veteran’s description of the problems caused by her hearing difficulties. Martinak v. Nicholson, 21 Vet. App. 447 (2007). While she reported difficulty communicating with others, especially in background noise, and hearing the television, audiological evaluations do not demonstrate a higher level of hearing loss than assigned. The Board in no way discounts the difficulties the Veteran experiences as a result of her bilateral hearing loss. However, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Board has no discretion and must make a finding on the rating schedule on the basis of the results of the audiological evaluations of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board has considered whether the schedular evaluation is inadequate, thus requiring referral of the case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2018). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular rating is adequate, and referral is not required. Id.; 38 C.F.R. § 3.321(b)(1). In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected bilateral hearing loss, but the medical evidence reflects that those manifestations are not present in this case. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran’s bilateral hearing loss. The rating criteria consider loss of hearing acuity and degradation of speech discrimination due to hearing loss. Her difficulties communicating with others, especially in background noise, and hearing the television are reasonably contemplated by the rating criteria. While the Board is sympathetic to her situation, there is no indication that her hearing loss has resulted in marked occupational impairment or frequent periods of hospitalization. Thus, as the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. In conclusion, a compensable rating for bilateral hearing loss is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a claim for service connection for GERD is remanded. 2. Whether new and material evidence has been received to reopen a claim for service connection for uterine fibroids is remanded. 3. Whether new and material evidence has been received to reopen a claim for service connection for headaches is remanded. 4. Whether new and material evidence has been received to reopen a claim for service connection for panic disorder is remanded. On a June 2014 notice of disagreement, the Veteran asserted that she developed headaches from the loud noises associated with her military occupational specialty, acquired a panic disorder and anxiety from the stress of participating in the Persian Gulf War, received treatment for GERD while in service, and developed fibroids from the medications and immunizations needed for her overseas deployment as well as from her many hours of field duty. On a May 2016 substantive appeal, the Veteran added that her GERD was also from being out in the field most of the time eating ready-to-eat meals, headaches were also from a lack of sleep due to her anxiety and from the stress of the Persian Gulf War, and uterine fibroids were from urinary tract infections she incurred every time she went out to the field. While the available service personnel records show that the Veteran served in Germany, they do not show that she served in the Persian Gulf, or Southwest Asia. However, the Board observes that her battalion may have served in Southwest Asia. Thus, the Veteran’s complete service personnel records should be obtained to determine whether she in fact served in Southwest Asia. Also, while the available service treatment records do not show any treatment for the Veteran’s claimed disabilities, the claims file contains very few of her service treatment records from her almost 7 years of service and appear incomplete. Thus, another attempt to obtain any missing service treatment records should be made. The matters are REMANDED for the following actions: 1. Request the Veteran’s complete service personnel records and any additional service treatment records from all potential sources. (Continued on the next page)   2. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. W. Kim, Counsel