Citation Nr: 18145974 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-04 565 DATE: October 30, 2018 ORDER Entitlement to an evaluation higher than 10 percent for bilateral hearing loss is denied. REMANDED Entitlement to service connection for peripheral vestibular disease, claimed as vertigo, secondary to tinnitus and bilateral hearing loss is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. FINDING OF FACT The Veteran has no worse than Level I designation of hearing loss in the left ear and no more than Level IV in the right ear. CONCLUSION OF LAW The criteria for entitlement to an evaluation higher than 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION Previously as regarding a scheduled hearing, the Veteran was to attend a Travel Board hearing in August 2018. He did not report for that proceeding, and did not request to reschedule or provide a good cause justification for nonappearance. The hearing request is therefore deemed withdrawn. Entitlement to an evaluation higher than 10 percent for bilateral hearing loss. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Hearing loss ratings are based on mechanical application of VA rating schedule to the results of audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The raw data comes from audiology reports that demonstrate average hearing threshold at the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. These results are grouped into 11 auditory acuity levels designated from Level I for normal hearing acuity, through Level XI for profound deafness. A rating is determined based upon combination of levels of hearing loss in both ears, and speech discrimination scores. See 38 C.F.R. § 4.85, Table VI. For certain forms of severe hearing limitation, Table VIA is also available to calculate the rating, based on only pure tone threshold averages and not speech discrimination scores. See 38 C.F.R. § 4.86. On the authorized audiological evaluation in February 2013, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 65 60 70 85 LEFT 20 30 55 65 The puretone average was 70 on the right and 42 on the left. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 96 percent in the left ear. The indicated impact of the Veteran hearing loss condition was that he reported difficulty following either group or one-to-one conversations. In addition, he indicated having problems hearing if background noise was present, and following telephone conversation. The Veteran also reported his son complained because he turned up the TV volume too high. Regarding occupational functioning effect, he indicated he always had to ask for repetition when hearing instructions. The contemporaneous VA outpatient record of audiological evaluation from February 2013 indicates the following results, that pure tone thresholds, in decibels, were as follows (these are “air conduction” audiological test results and not “bone conduction”): HERTZ 1000 2000 3000 4000 RIGHT 65 60 70 85 LEFT 20 30 55 65 The puretone average was 70 on the right and 42 on the left. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 96 percent in the left ear. Subsequently in April 2013 the Veteran underwent private audiological evaluation. The test results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 55 70 85 LEFT 30 45 70 65 The puretone average was 66 on the right and 52 on the left. On an August 2013 VA Compensation and Pension examination, the audiological evaluation indicated pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 55 55 65 70 LEFT 20 30 45 50 Puretone average was 61 on right and 36 on left. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 100 percent in the left ear. There was no indication that the Veteran’s ear or peripheral vestibular conditions impacted his ability to work. On VA examination again April 2016 for audiological examination, the results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 60 55 65 70 LEFT 25 35 45 55 Puretone average was 62 on right and 40 on the left. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 100 percent in the left ear. With regard to hearing loss and impact upon ordinary conditions of daily life, including ability to work, the Veteran stated that he had difficulty understanding conversations, and no occupational functioning effects were reported. Having considered these findings, the Board observes that the criteria for increased rating effectively are not met when applying the pertinent rating standards. The April 2016 VA examination findings and report are largely consistent with the Veterans symptomatology and audiometric frequency test results, observed over several instances and since the claim was originally filed. Based on the April 2016 audiogram and the applicable rating tables for hearing loss, the Veteran had the designations of Level I hearing loss in left ear and Level III hearing in the right ear. That designation is based upon the application of Table VI. See 38 C.F.R. § 4.85. Turning then to Table VII, the combination of two Level I designations will equate to a noncompensable (0 percent) rating. The additional remaining audiological evaluations of which there were several overall did not show significantly worse or numerically higher test results. As has already been determined by Regional Office decision the basis for entitlement to a 10 percent rating is clearly established, and clearly regardless of whether the audiometric data sometimes suggest somewhat better test results technically speaking. The above findings at this time do not support greater than a 10 percent evaluation. The Board notes that while hearing loss was slightly higher in the right ear in an earlier examination, equating to Level IV hearing, the criteria for a rating in excess of 10 percent are not met even considering those numbers. There was not the type of hearing loss at any point that would qualify as an “exceptional” pattern of impairment, that would warrant application of Table VIa for evaluation of hearing impairment based on puretone threshold averages. See generally, 38 C.F.R. § 4.86 (indicating that where there is exceptional impairment, then either Table VI or Table Via may be utilized, “exceptional” impairment consisting of one of the following: (1) the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more; (2) the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz). Given these findings and that the evaluation of hearing loss involves the application of numerical data to rating standards, the evidence available does not permit the award of any increased rating. The issue of extraschedular rating under 38 C.F.R. § 3.321(b)(1) remains. The assessment of functional loss and potential limitation in an occupational setting will be considered in regard to evaluation under section 3.321(b)(1). According to the holding in Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the threshold factor for extraschedular consideration is that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). Second, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’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 evaluate 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 Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra-schedular rating. Here, having reviewed additional findings beyond numerical audiometric test results, the evidence in this case does not show such an exceptional disability picture. The Board has compared the level of severity and symptomatology of the Veteran’s service-connected bilateral hearing loss with the established criteria found in the rating schedule. Overall, here the Veteran forthrightly described his current hearing loss issues and indicated its severity, and has clarified that his only complaints were difficulty hearing in conversations and sometimes with participating in verbal interactions at work. These matters while unfortunate nonetheless do not constitute notably exceptional problems that would specifically characterize hearing loss. The existing rating criteria already contemplate the difficulty the Veteran has hearing in all situations. In this regard, the rating schedule takes into account both the average decibel loss as well as speech discrimination scores for hearing loss and contemplates that hearing loss may be so profound as to result in scores above the numbers on the charts and beyond the range of audiometers (as indicated by the “+” signs in Tables VI and VIA as well as the provisions of 38 C.F.R. § 4.86(a)). The Veteran’s hearing loss has been considered in terms of full range of symptomatology, and it does not indicate any exceptional circumstances. This follows comprehensive VA examination on the matter. See e.g., Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007) (in view of potential entitlement to extraschedular rating the examiner should describe effect of hearing loss on occupational functioning and daily activities). The first component of the Thun criteria has not been met. Apart from that first criterion, the Veteran’s service-connected bilateral hearing loss has not necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Accordingly, the requirements to establish an increased rating for bilateral hearing loss are not met. The preponderance of the evidence is unfavorable, and under these circumstances VA’s benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for peripheral vestibular disease, claimed as vertigo, secondary to tinnitus and bilateral hearing loss is remanded. Based on review of the evidence, the Veteran has been diagnosed with peripheral vestibular disorder. The determination regarding the etiology of that condition requires further VA examination and opinion. According to the August 2013 VA examiner, the Veteran admitted to vertigo during military service, but the condition of vertigo may have also preceded service. The Veteran described further a blast injury during service and with later having sustained right ear trauma. The question remains, how to resolve the issue of causation. In recent correspondence the Veteran’s representative contends that the above examination was inadequate and incomplete for rating purposes, and the Board agrees with this statement. Given that the August 2013 examiner’s opinion did not clearly address causation in terms of a definitive sequence of events, including whether based on the Veteran’s contention he had peripheral vestibular disease pre-existing service, and that it also worsened therein, another VA Compensation and Pension examination should be scheduled. 2. Entitlement to service connection for traumatic brain injury (TBI) is remanded. The Veteran avers having had the sustained residuals of exposure to and/or proximity to a blast injury during his active military service. The account of this event provided is presumed competent reported history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). To inquire further into the history of the stated blast injury and any subsequent, residual condition, VA examination is therefore warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran’s most recent VA outpatient treatment records and associate these with the claims folder. 2. Schedule the Veteran for a VA examination with a qualified clinician regarding a claimed TBI. The claims files must be provided to and reviewed by the examiner in conjunction with the examination. The VA examiner should initially confirm whether the Veteran has the condition of having ever sustained a traumatic brain injury (TBI). Provided that condition is confirmed, the examiner should provide an opinion as to whether the disorder at least as likely as not (50 percent or greater probability) was incurred during military service, taking into consideration the Veteran’s own reported history of the incident, along with any objective documentation of the same. The examiner should include in the examination report an explanation for all opinions. If the examiner cannot respond to the inquiries posed without resort to speculation, he or she should further explain why it is not feasible to provide a medical opinion. 3. Schedule the Veteran for a VA examination with a qualified clinician regarding his claimed peripheral vestibular disease. The claims files must be provided to and reviewed by the examiner in conjunction with the examination. The VA examiner should initially confirm whether the Veteran currently has peripheral vestibular disease. Provided that condition is confirmed, the examiner should address the following three inquiries, that pertain to the dispositive issue of causation: a. Did the Veteran have peripheral vestibular disease that clearly and unmistakably pre-existed military service? b. If so, did that condition clearly and unmistakably NOT undergo aggravation in service? c. If the disability did not clearly and unmistakably pre-exist service, was that condition at least as likely as not originally incurred in service? The examiner should include in the examination report an explanation for all opinions. If the examiner cannot respond to the inquiries posed without resort to speculation, he or she should further explain why it is not feasible to provide a medical opinion. (Continued on the next page)   4. Review the claims file. If the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 5. Then readjudicate the claims on appeal for entitlement to service connection for peripheral vestibular disease, and for traumatic brain injury. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons