Citation Nr: 18145354 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 12-06 473 DATE: October 26, 2018 ORDER An extraschedular rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s hearing loss is manifested by difficulty understanding speech at low volumes, difficulty discriminating among sounds, difficulty using the telephone, and occasional lightheadedness/loss of balance. 2. The Veteran’s hearing loss is not productive of such related factors as marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for an extraschedular rating for bilateral hearing loss are not met. 38 U.S.C. §§ 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1) (2018)   REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Background This case comes before the Board on remand from a March 2018 decision by the U.S. Court of Appeals for Veterans Claims (Court) that set aside a September 2016 Board of Veterans’ Appeals (Board) decision that denied an extraschedular rating for bilateral hearing loss. This decision found that because the September 2016 Board decision referred the matter of an ear disorder manifesting in difficulties with balance to the Agency of Original Jurisdiction (AOJ), it was premature for the Board to issue a decision on the matter of entitlement to an extraschedular rating for bilateral hearing loss. The Court specifically set forth in this regard as follows: Given that this Court has suggested that hearing-loss-related balance issues may not be contemplated by the hearing loss rating criteria, Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017), and therefore relevant and material to the awarding of an extraschedular evaluation, Thun v. Peake, 22 Vet. App. 111, 115 (2008), the Board's decision was premature, see Brambley, 17 Vet. App. at 24. At the very least, the Board is required to explain how its decision wasn't premature. See Allday, 7 Vet. App. at 527. Referencing the Board’s determination in its September 2016 decision that the Veteran’s “lightheadedness when quickly changing postures . . . was not related to the Veteran's service-connected hearing loss via medical evidence,” the Court remarked as follows: This would seem to suggest the Board found the lightheadedness unrelated to appellant's hearing loss. Nonetheless, the Court is unable to discern if the Board found the lightheadedness unrelated to the hearing loss or secondary to the hearing loss or was merely noting the lack of medical evidence. It's also unclear if the lightheadedness the Board referenced includes the “ear disorder manifesting in difficulties with balance” it specifically referred for development. If it does, it further highlights the prematurity of the Board's extraschedular decision. The Board’s August 2015 Board remand directing that the matter of entitlement to an extraschedular rating for bilateral hearing loss be referred to the VA Director of Compensation and Pension Service (Director) specifically noted the Veteran’s report at a March 2013 VA audiology examination that he had developed balance problems in the past year and that when he changed positions too quickly he became lightheaded, which was the specific matter found in a June 2015 Joint Motion for Remand granted by the Court to have raised the matter of an extraschedular rating. Moreover, the Director’s decision received in May 2016—which found that an extraschedular rating for bilateral hearing loss was not warranted—specifically noted consideration of the Veteran’s May 2013 report of developing lightheadedness and loss of balance. For the purposes of the decision below and to avoid any further delay in the adjudication of the matter remaining on appeal, the undersigned has assumed that the service-connected manifestations of bilateral hearing loss include the loss of balance reported by the Veteran at the March 2013 VA examination. II. Legal Criteria Extraschedular consideration involves a three-step analysis. Thun, supra. First, a determination must be made as to whether the schedular criteria reasonably describe a Veteran’s disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a Veteran’s disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a Veteran’s level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If an exceptional disability picture including such factors as marked interference with employment or frequent periods of hospitalization exists, the matter must be referred to the Director for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board notes that the Director’s decision with respect to an extraschedular rating is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). III. Analysis As noted above, a decision by the Director received in May 2016 found that an extraschedular rating for bilateral hearing loss was not warranted. After a careful review of all the evidence of record, to include sworn testimony at the May 2013 hearing before the undersigned, the Board agrees with the decision of the Director. In making the above determination, the undersigned has considered such evidence as the Veteran’s report at a February 2011 VA examination that his hearing loss had reached such a severity that he needed to face people to understand conversations; that he had difficulty using the telephone; and that he could no longer hear low volume sounds, such as whispers. Also considered was the statement submitted by the Veteran’s spouse in February 2011 in which she reported that the Veteran had received some relief from the use of hearing aids, but that his hearing aids did not always work well and sometimes needed to be removed. In those instances, she reported the Veteran’s hearing as being of such severity that he would have difficulty hearing someone next to him at a table, and she noted that the Veteran had particular difficulty when background noise was present. The Veteran’s spouse also stated that the Veteran’s hearing loss had begun to negatively impact his ability to work, as he had trouble adequately performing tasks and following instructions. The Veteran’s spouse also stated that the Veteran’s hearing made it difficult for him to participate in meetings at work, and other similar activities. Also considered were the reports from the March 2013 VA examination, at which time the Veteran again stated that he must face people during conversations to understand them and that he had appreciable difficulty using the telephone. As indicated above, his statements during this examination that he now experiences difficulties with his balance/lightheadedness have also been considered, and have been considered to be manifestations of the service-connected bilateral hearing loss for the purposes of this decision. Finally, the testimony before the undersigned at the May 2013 hearing has been considered, wherein the Veteran repeated having difficulty with low volume sounds and discrimination between sounds with background noise. The Veteran also repeated his assertions that he needs to look at people to understand them, and he attested to certain difficulties using his hearing aids in situations with significant background noise, such as concerts or airplanes. However, the Veteran also stated that his hearing had not caused him to miss any work, other than for doctor’s appointments, and he had not been hospitalized because of his hearing. In this case, the vast majority of the symptoms experienced by the Veteran relate to his ability to hear at various frequencies and volumes. Such symptoms manifest in the Veteran’s reports of the need to look at others while conversing, and having difficulty using the telephone or hearing lower volume sounds, such as whispers. All these hearing problems are clearly contemplated by the criteria for rating hearing loss codified at 38 C.F.R. § 4.85 (2018). Furthermore, there is no evidence in the claims file to indicate that the schedular rating criteria inadequately consider the impact of the Veteran’s difficulty with detection of various frequency sounds at various volumes, particularly given the improvement of these abilities with the Veteran’s hearing aids. See 64 Fed. Reg. 25206 (May 11, 1999) (explaining that the hearing loss rating criteria were designed to assess the hearing disabilities of Veterans in real life industrial settings, including situations involving background noise). As for the reported problems with balance/lightheadedness, the operative question in this case is whether such difficulties render unjust the schedular, noncompensable, rating assigned to the Veteran. However, the Board finds no evidence that this symptom, or any other symptom of hearing loss, has so negatively impacted the Veteran’s earning capacity as to result in marked interference with employment. In fact, the Veteran specifically testified before the undersigned in May 2013 that his hearing loss disability had not caused him to miss any work, and the record does not contain evidence to suggest that such disability has markedly interfered with employment. Absent such evidence, and there being no, much less frequent hospitalizations, due to hearing loss, an extraschedular rating is not warranted. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel