Citation Nr: 18144785 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-37 386 DATE: October 25, 2018 ORDER Entitlement to a disability rating in excess of 50 percent for service-connected bilateral hearing loss prior to August 1, 2017, and in excess of 40 percent thereafter is denied. FINDINGS OF FACT 1. For the period prior to August 1, 2017, the Veteran has had, at worst, Level XI hearing loss in both ears. 2. For the period after August 1, 2017, the Veteran has had, at worse, Level V hearing loss in both ears. 3. For the entire period at issue, the symptoms associated with the Veteran's bilateral hearing loss have been contemplated by the schedular rating criteria and the currently assigned ratings are commensurate with the average earning capacity impairment due to such disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for service-connected bilateral hearing loss prior to August 1, 2017, and in excess of 40 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.383, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a disability rating in excess of 50 percent for service-connected bilateral hearing loss prior to August 1, 2017, and in excess of 40 percent thereafter on an extraschedular basis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b)(1). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1959 to August 1961. In October 2017, the Board remanded the issue of entitlement to a rating in excess of 50 percent for service-connected bilateral hearing loss prior to August 1, 2017, and in excess of 20 percent thereafter. In the remand, the Board noted that during the course of the Veteran’s appeal for an increased rating for his bilateral hearing loss, the Regional Office (RO) had issued a May 2017 rating decision that reduced the evaluation of the Veteran’s hearing loss from 50 percent to 20 percent, effective August 1, 2017, and that he had filed a timely notice of disagreement (NOD) with that decision that was received in June 2017. The Board then explained that although rating reduction cases were separate from rating increase cases, the two issues were inextricably intertwined in that both depended upon the determinations of the details of the severity of the Veteran’s bilateral hearing loss. Therefore, the Board remanded the increased rating claim for re-adjudication pending the resolution of the Veteran’s rating reduction claim. Following the Board remand, the RO issued a May 2018 rating decision that assigned the Veteran’s bilateral hearing loss rating a 40 percent disability rating, effective from August 1, 2017 (the date of the original reduction to 20 percent). Although this decision did not restore a 50 percent rating, the RO explained that they considered their decision to be a full grant of the benefits sought on appeal because the Veteran’s June 2017 NOD had indicated he would be satisfied with an evaluation of 30 percent or more for his bilateral hearing loss. In an October 2018 informal hearing brief, the Veteran’s representative presented argument concerning the propriety of the reduction of the rating assigned for the Veteran’s bilateral hearing loss. Although these arguments suggest the representative’s belief that this issue is on appeal, concurrent with the increased rating claim, the Board notes that an appeal has not been perfected with respect to the rating reduction issue. Significantly, as noted, the May 2018 rating decision was considered a full grant of benefits and the issue is therefore no longer on appeal. The Veteran was also provided notice of this decision and, to date, has not filed a NOD with the May 2018 rating decision. Therefore, this decision will only address the matter of the increased rating claim. Entitlement to a disability rating in excess of 50 percent for service-connected bilateral hearing loss prior to August 1, 2017, and in excess of 40 percent thereafter. Disability ratings are determined by applying the criteria set forth in 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 Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). The assignment of a disability rating for hearing impairment is “derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered.” Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). Specifically, organic impairment of hearing acuity is rated by using audiological test results, obtained by a state-licensed audiologist, and the basic rating method involves using both the results of controlled speech discrimination tests (Maryland CNC) and the average decibel threshold level as measured by pure tone audiometry tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85(a). Tests are conducted without hearing aids. The rating schedule establishes eleven auditory acuity levels ranging from numeric level I through numeric level XI, obtained by applying the findings to Table VI or VIa. 38 C.F.R. §§ 4.85, 4.86. The numeric designations for both ears are then applied to Table VII to derive the percentage evaluation, under Diagnostic Code 6100. In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz ) is 55 decibels (dB) 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. When the puretone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, 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 numeral. 38 C.F.R. § 4.86. The relevant evidence of record prior to August 1, 2017, includes the report received in February 2014 from an audiological examination conducted in September 2013. Audiological testing at the time revealed puretone thresholds in dB for the left ear at 1000, 2000, 3000 and 4000 Hz of 40 dB, 55 dB, 80 dB, and 90 dB respectively, with an average over those frequencies of 66.25 dB. In the right ear, audiological testing at the time revealed puretone thresholds in dB at 1000, 2000, 3000 and 4000 Hz of 35 dB, 50 dB, 75 dB, and 85 dB respectively, with an average over those frequencies of 61.25 dB. The speech recognition scores were 80 percent in both ears. Audiological testing from a July 2016 VA examination revealed puretone thresholds in dB for the left ear at 1000, 2000, 3000 and 4000 Hz of 50 dB, 60 dB, 75 dB, and 75 dB respectively, with an average over those frequencies of 65 dB. In the right ear, audiological testing at the time revealed puretone thresholds in dB at 1000, 2000, 3000 and 4000 Hz of 50 dB, 60 dB, 80 dB, and 95 dB respectively, with an average over those frequencies of 71 dB. The speech recognition scores were 72 percent in the right ear and 80 percent in the left ear. See examination. Applying the results of the VA audiological examinations for the period prior to August 1, 2017 to Table VI yields Roman number values of IV in the left ear and IV and VI, respectively, in the right ear. See 38 C.F.R. § 4.85. Applying those values to Table VII, the Veteran’s bilateral hearing loss does not warrant a rating in excess of 50 percent prior to August 1, 2017. Id. Exceptional patterns discussed in § 4.86 have not been demonstrated either. With respect to the VA audiology examinations, the audiologist must describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447, 455-456 (2007). In this regard, the Veteran informed the July 2016 examiner that he experienced difficulty hearing and understanding conversations, especially in background noise or when visual cues were limited. These complaints are, however, contemplated by the schedular criteria and do not provide a basis for any rating higher than what is assigned based on application of 38 C.F.R. § 4.85. For the period after August 1, 2017, another audiological examination was performed in November 2017. The examination revealed puretone thresholds in dB for the left ear at 1000, 2000, 3000 and 4000 Hz of 60 dB, 80 dB, 90 dB, and 90 dB respectively, with an average over those frequencies of 80 dB. In the right ear, audiological testing at the time revealed puretone thresholds in dB at 1000, 2000, 3000 and 4000 Hz of 60 dB, 70 dB, 85 dB, and 95 dB respectively, with an average over those frequencies of 78 dB. The speech recognition scores were 80 percent in the right ear and 76 percent in the left ear. See examination. Applying the results of the VA audiological examination for the period beginning on August 1, 2017 to Table VI yields Roman number value of V bilaterally. See 38 C.F.R. § 4.85. Applying that value to Table VII, the Veteran’s bilateral hearing loss does not warrant a rating in excess of 40 percent. Id. Exceptional patterns discussed in § 4.86 have not been demonstrated either. Again, with respect to the VA audiology examinations, the audiologist must describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447, 455-456 (2007). The November 2017 examiner found the Veteran’s hearing loss did not impact ordinary conditions of daily life, including work, and there were no additional complaints recorded. The audiometric examinations of record do not support a rating in excess of 50 percent prior to August 1, 2017 and in excess of 40 percent thereafter for bilateral hearing loss disability. Although the Veteran asserts that his hearing loss disability warrants additional compensation, the medical evidence prepared by a skilled neutral professional is more probative. The criteria for rating hearing loss are based on test results, as described. The Veteran offers no information that goes to those criteria. As such, his unsupported assertion that higher ratings are warranted for the periods at issue is not probative evidence. In conclusion, the Board finds that the results of the VA audiological evaluations are more probative than the lay evidence, and a disability rating in excess of 50 percent prior to August 1, 2017 and in excess of 40 percent thereafter for the Veteran’s service-connected bilateral hearing loss disability must be denied. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Consideration In a September 2017 informal hearing brief, the Veteran’s representative argued that an extraschedular rating was warranted, if the Veteran’s service-connected hearing loss disability rating was not increased. As noted above, under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluation. Ratings for hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per seconds. 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. 38 C.F.R. § 4.85, DC 6100. The VA Rating Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under those circumstances, where the schedular evaluations are found to be inadequate, a Veteran may be awarded a rating higher than that encompassed by the schedular criteria. 38 C.F.R. § 3.321(b)(1). According to the regulation, an extraschedular disability rating is warranted upon 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 that would render impractical the application of the regular schedular standards. Id. The United States Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran has consistently argued that his hearing worsens over time. In a June 2017 NOD (to a May 2017 rating decision that reduced the disability rating assigned for his bilateral hearing loss), the Veteran noted that if he took out his hearing aids, he would hear noise but be unable to distinguish words. In an August 2016 statement, the Veteran also reported he had to turn the television volume up extremely loud to hear when he did not have his hear aids in his ears. He indicated it was not likely that his hearing was going to get better. In fact, he stated that an audiological technician had, in April 2014, told him he was able to understand only half of the words she repeated to him and at a later time, he was told his right ear had worsened. Additionally, as previously outlined above, the Veteran reported to the July 2016 VA examiner that he had difficulty hearing and understanding conversation, especially in background noise or when visual cues are limited. However, notably, the November 2017 examiner later found the Veteran’s hearing loss did not impact ordinary conditions of daily life, including work, and there were no additional complaints recorded. In this case, the medical and lay evidence outlined above clearly reflects that the Veteran has communication difficulties and problems hearing and understanding certain parts of speech due to his service-connected bilateral hearing loss. However, such difficulties, along with his reported problems of communicating are manifestations of his inability to hear and understand speech, which are contemplated by the schedular rating criteria for hearing loss. Indeed, in Doucette v. Shulkin, the Court recently that the schedular criteria for rating hearing loss contemplate the functional effects of difficulty hearing and understanding speech. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Court noted that when evaluating hearing loss, VA measures a Veteran’s ability to hear certain frequencies at specific volumes and to understand speech, using rating tables to correlate the results of audiometric testing with varying degrees of disability. Id. In light of the plain language of 38 C.F.R. §§ 4.85 and 4.86, as well as the regulatory history of those sections, the Court held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure. Id. T hus, when a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. Id. In view of the above, the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment; therefore, the schedular criteria are not inadequate to describe the severity and symptoms of the Veteran’s disability in regard to his difficulty hearing customers and/or fellow employees speak. See Doucette, supra. In short, the Board finds that the schedular criteria adequately describe the severity of the Veteran’s symptoms of difficulty hearing and understanding speech (to include in an everyday work environment); the Veteran does not have other functional effects related to difficulty hearing. The threshold issue under Thun is thus not met and the Board need not proceed to consider the second element of whether there are related factors such as marked interference with employment or frequent periods of hospitalization. For the reasons and bases delineated above, a disability evaluation in excess of 50 percent prior to August 1, 2017, and in excess of 40 percent thereafter is not warranted for the Veteran’s bilateral hearing loss on an extraschedular basis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 and Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel