Citation Nr: 18143666 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 13-01 009 DATE: October 19, 2018 ORDER An increased rating higher than 10 percent for service-connected bilateral hearing loss is denied. REMANDED An extraschedular rating for bilateral hearing loss is remanded. FINDING OF FACT During the period on appeal, the Veteran’s bilateral hearing loss has been manifested by auditory acuity no worse than Level V in the right ear and Level II in the left ear; there is no indication of an exceptional pattern of hearing impairment. CONCLUSION OF LAW The criteria for an increased rating higher than 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.321(b), 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision. In February 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. In September 2017, the Board remanded this case for additional development. The Veteran’s other issues on appeal, including total disability rating based on individual unemployability (TDIU), will be the subject of separate, forthcoming Board decisions. Increased rating higher than 10 percent for bilateral hearing loss Legal Criteria Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations for hearing acuity assigned using the results of audiometric evaluation. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with the Veteran’s average hearing threshold. The average pure tone threshold is derived from pure tone audiometric testing of frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the hearing acuity level. Table VIA is used when speech discrimination tests are not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (defined in 38 C.F.R. § 4.86). One such pattern occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). Another occurs when the pure tone threshold at 1000 Hertz is 30 decibels or less and the pure tone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b). Factual Background During the November 2012 VA audiologic examination, the Veteran reported difficulty hearing conversational speech at home and work, needing to ask for repetition, and associated difficulty communicating. He also reported needing to increase the volume on his television and radio. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 40 50 80 52.5 LEFT 45 40 45 50 45 Maryland CNC speech discrimination scores were 72 percent for the right ear and 88 percent for the left ear. These numeric designations in combination correspond to a 10 percent rating under Table VII, DC 6100. [CONTINUED ON NEXT PAGE] During a June 2013 VA examination, the Veteran reported difficulty understanding phone conversations and in-person conversations, including at work. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 25 45 85 51.25 LEFT 50 50 50 60 52.5 Maryland CNC speech discrimination scores were 90 percent for the right ear and 92 percent for the left ear. These numeric designations in combination correspond to a 0 percent (noncompensable) rating under Table VII, DC 6100. [Note: this examination report is difficult to interpret because the examiner reported the pure tone thresholds as above and stated the testing was valid for rating purposes. Later in the examination report, however, the examiner stated that the Veteran’s hearing loss could not be determined due to poor reliability and consistency of test results.] During a September 2014 private audiological examination, the Veteran reported otalgia (ear pain) and difficulty communicating due to hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 40 70 41.25 LEFT 25 35 40 45 36.25 Maryland CNC speech discrimination scores were 90 percent for the right ear and 92 percent for the left ear. These numeric designations in combination correspond to a 0 percent (noncompensable) rating under Table VII, DC 6100. During June 2016 and February 2017 independent medical examinations, the Veteran reported difficulty hearing in both ears. On examination, the Veteran could converse, but the examiner confirmed the Veteran’s difficulty hearing bilaterally. No audiometric testing is associated with these examination reports. During the February 2017 Board hearing, the Veteran testified that his hearing had worsened since the most recent audiological testing. He also described how his hearing loss caused problems at work due to difficulty communicating with colleagues. In September 2017, the Board remanded the case to afford the Veteran a contemporaneous VA audiological examination. During the December 2017 VA-contracted examination, the Veteran reported difficulty hearing in noisy environments and in groups. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 35 55 80 51 LEFT 40 40 55 75 52 Maryland CNC speech discrimination scores were 92 percent for the right ear and 96 percent for the left ear. These numeric designations in combination correspond to a zero percent, or noncompensable, rating under Table VII, DC 6100. Analysis After carefully reviewing the evidence, the Board finds that no audiometry during the appeal period shows hearing loss warranting a rating higher than 10 percent under the schedular criteria for rating hearing loss. In addition, the Board again notes that the June 2013 VA audiological examination report is difficult to interpret because the examiner’s report of valid pure tone and speech recognition scores appears inconsistent with the additional statement that the Veteran’s hearing loss could not be determined due to poor reliability and consistency of the audiological testing results. Resolving reasonable doubt in the Veteran’s favor, the Board has not considered this examination report in deciding this case. Nevertheless, the other VA examination reports of record, dated before and after this examination, do not allow the Board to assign a rating higher than 10 percent under the schedular criteria for hearing loss. The Board further finds that the record does not show an exceptional pattern of hearing impairment as contemplated by 38 C.F.R. § 4.86 (described above). Accordingly, the Board must conclude that a schedular disability rating higher than 10 percent for bilateral hearing loss is not warranted. The Veteran also reported trouble hearing conversational speech, spoken instructions at work, and the television and the radio. These statements are competent evidence describing hearing loss symptoms and their impact. The Board appreciates the Veteran’s efforts to explain his symptoms, and finds no reason to doubt his credibility. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). In fact, the Board finds these statements and reports consistent with the Veteran’s noted hearing loss. As discussed above, however, schedular ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned from audiometric evaluations. Accordingly, the Board is unable to grant the appeal because the specific legal criteria for a schedular rating higher than 10 percent for bilateral hearing loss are not met. The Board notes that this decision does not leave the Veteran without recourse. If his hearing loss worsens, he is encouraged to file a new claim for an increased disability rating. In addition, as discussed below, the Board is remanding the case to determine whether the Veteran is eligible to receive a higher rating on an extraschedular basis due to reported symptoms (ear pain and pressure) that are not encompassed by the schedular criteria and the impact of his hearing loss on occupational functioning. REASONS FOR REMAND Extraschedular rating for bilateral hearing loss is remanded. A remand is necessary for the Director of the Compensation Service to determine if the Veteran’s hearing loss disability picture warrants an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008); see also Doucette v. Shulkin 28 Vet. App. 366, 369 (2017). The matter is REMANDED for the following action: 1. Obtain all updated records of VA and adequately identified private treatment records. 2. Invite the Veteran to provide a statement describing all symptoms associated with bilateral hearing loss, to include ear pressure and ear pain, and the effect of his hearing loss on work. 3. Then refer the Veteran’s case to the Director, Compensation Service, for the consideration of an extraschedular rating for bilateral hearing loss. The Director may wish to consider the following (in addition to any newly obtained evidence): • During September 2014 private audiological evaluation, the Veteran reported ear pain (otalgia). • In an undated statement associated with private treatment records uploaded to the claims file in October 2017, the Veteran reported ear pressure. • The Veteran has also reported that he retired early because his hearing loss interfered with work. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel