Citation Nr: 18142199 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 09-39 549 DATE: October 15, 2018 ORDER An extraschedular initial rating for bilateral hearing loss, currently rated on a schedular basis as noncompensable from March 29, 2007, to May 14, 2018, and 10 percent since May 15, 2018, is denied. FINDING OF FACT The Veteran’s bilateral hearing loss does not present such an exceptional disability picture that the schedular ratings are inadequate. CONCLUSION OF LAW The criteria for an extraschedular initial rating since March 29, 2007, for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Marine Corps from November 1969 to November 1971. In July 2011, the Veteran was afforded a hearing with a Decision Review Officer (DRO). In February 2016, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. In March 2017, the Board, in pertinent part, declined to refer the bilateral hearing loss claim for extraschedular consideration under 38 C.F.R. § 3.321(b). The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2017, the Court granted the Parties’ Joint Motion for Partial Remand (JMPR) and vacated the Board’s March 2017 denial of a higher rating for bilateral hearing loss on an extraschedular basis. The parties before the Court agreed that “the Board failed to sufficiently explain why referral of [the Veteran’s] service-connected bilateral hearing loss condition for extraschedular consideration was not warranted to consider the combined effects of his service connected conditions: in particular his bilateral hearing loss and tinnitus,” as contemplated by Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Effective January 8, 2018, 38 C.F.R. § 3.321(b)(1) was revised eliminating extraschedular consideration based on the combined effects of multiple service connected disabilities. In June 2018, the Director of Compensation Service denied an increased rating for bilateral hearing loss on an extraschedular basis. In June 2018, a 10 percent schedular rating was granted effective May 15, 2018. The Veteran has been in receipt of a 100 percent schedular rating since May 20, 2017. Entitlement to an extraschedular initial rating for bilateral hearing loss, currently rated on a schedular basis as noncompensable from March 29, 2007, to May 14, 2018, and 10 percent since May 15, 2018. In an exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of the Compensation and Pension Service, upon field station submission, is authorized to approve based on the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in 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). There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. 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. Second, if the schedular ratings do not contemplate a Veteran’s level of disability and symptomatology and are 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 rate 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 the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra-schedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). The Code of Federal Regulations was revised effective January 8, 2018, eliminating extraschedular consideration based on the combined effects of multiple service-connected disabilities. Therefore, the Board need not discuss the combined effects of bilateral hearing loss and tinnitus and will, instead, only discuss the disability picture of bilateral hearing loss alone. In a July 2007, the Veteran underwent word recognition testing by a private audiologist. The Veteran reported difficulty hearing in noisy environments, such as restaurants or in the car, or when he was with a group of people. The examiner stated that “even a small amount of noise that competed with the words significantly impacted his ability to discriminate or understand speech.” Pure tone thresholds were not measured. In November 2007, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 15 80 85 LEFT 15 10 50 80 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 92 percent in the left ear. Based on the foregoing results, the VA examiner concluded that the Veteran had bilateral sensorineural hearing loss. The Veteran reported that his greatest difficulty was understanding and hearing speech. At his July 2011 DRO hearing, the Veteran reported that he had difficulty hearing when there was background noise and that people often sounded as if they were mumbling. He reported having to read lips to understand people speaking at a normal volume. In November 2011, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 15 75 95 LEFT 5 10 45 95 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 80 percent in the left ear. Based on the foregoing results, the VA examiner concluded that the Veteran had bilateral sensorineural hearing loss. The Veteran reported difficulty understanding voices and that his boss’ voice was very soft and he had trouble hearing him speak. In May 2015, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 80 85 LEFT 15 10 45 80 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. Based on the foregoing results, the VA examiner concluded that the Veteran had bilateral sensorineural hearing loss. The examiner wrote that the Veteran’s hearing loss disability “has a negative impact on his ordinary conditions of daily life by having a hard time understanding voices and occupationally he reports having a hard time understanding instructions.” In a November 2015 statement the Veteran reported difficulty hearing in crowded areas, such as at restaurants, hearing the television, and understanding speech, particularly women’s voices. At the Veteran’s February 2016 Board hearing, the Veteran testified that he had difficulty hearing in even a semi noisy environment and had difficulty hearing women, kids, and men, including his boss, if they spoke softly. His hearing difficulty caused discomfort and embarrassment at his job. In October 2016, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 80 90 LEFT 20 15 60 80 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 84 percent in the left ear. Based on the foregoing results, the VA examiner concluded that the Veteran had bilateral sensorineural hearing loss. The examiner wrote that the Veteran’s hearing loss disability had an impact on his life because “it sounds like certain people are mumbling when they speak.” In a November 2016 statement, the Veteran wrote that the VA audiological examinations were not an accurate assessment of his ability to hear because they were conducted in a sound-proof booth without the background noise present in daily life. He reiterated his difficulty hearing most women’s voices and men’s voices when they were of a certain tone. He also reiterated that background noise decreased his ability to hear. In May 2018, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 20 85 85 LEFT 25 20 65 85 Speech audiometry revealed speech recognition ability of 74 percent in the right ear and 84 percent in the left ear. Based on the foregoing results, the VA examiner concluded that the Veteran had bilateral sensorineural hearing loss. The Veteran reported difficulty hearing in the presence of any background noise and difficulty hearing people speak, hearing people on the telephone, and hearing the television. The Veteran’s bilateral hearing loss does not present such an exceptional disability picture that the schedular rating is inadequate. The Veteran had no hospitalizations due to his hearing loss. Additionally, there is no evidence that he had marked interference with employment. The Veteran stated that he sometimes had difficulty hearing his boss, which had caused some embarrassment and discomfort at his job, and that he sometimes had difficulty hearing instructions at work. There is no evidence, however, that the Veteran’s hearing loss caused any interference with employment—much less marked interference. Based on reports by the Veteran, the main problems his hearing loss disability caused were difficulty hearing and difficulty understanding speech—both effects contemplated by the schedular criteria for hearing loss. Diagnostic code 6100 expressly provides for consideration of both difficulty hearing (by audiometric testing) and difficulty understanding speech (through speech recognition testing) in determination of the appropriate rating. Therefore, the Veteran’s symptoms have been contemplated by the Schedule For Rating Disabilities and have been accounted for in his schedular ratings. There are no additional symptoms or circumstances that warrant an extraschedular rating and, therefore, an increased rating on an extraschedular basis is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel