Citation Nr: 18147135 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 10-05 370 DATE: November 2, 2018 ORDER Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. Audiometric testing shows that the Veteran’s hearing loss is manifested by no more than Level IV hearing in the right ear and Level II hearing in the left ear. 2. The Veteran’s symptoms of dizziness and balance problems have been attributed to his non-service-connected status post perforated eardrums. 3. The Veteran’s social isolation, marital strife, and irritability have been attributed to his service-connected posttraumatic stress disorder (PTSD) and are contemplated in the 50 percent disability rating already assigned for that disability. CONCLUSION OF LAW The criteria for an initial compensable disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 1160, 5107; 38 C.F.R. §§ 3.383, 3.385, 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1969 to March 1971. In June 2012, the Veteran testified at a Board hearing over which the undersigned presided. The Board adjudicated this appeal in a June 2016 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2017 decision, the Court, set aside the June 2016 decision, and remanded the case to the Board for further action. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss. The Veteran is seeking an initial compensable disability rating for his service-connected bilateral hearing loss. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14. In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests (Maryland CNC) together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. See 38 C.F.R. § 4.85 (a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular ratings are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a), (b). The Board further notes the Court has held that, “in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). A June 2008 private audiogram showed pure tone thresholds, in decibels, as listed below: HERTZ 1000 2000 3000 4000 Average RIGHT 20 30 55 70 44 LEFT 25 30 60 70 46 Speech discrimination was 90 percent in each ear. He reported difficulty understanding speech when there is background noise. Under Table VI, the both ears are assigned Roman numeral “II.” Under Table VII, if the poorer ear is rated II and the better ear is rated II, a noncompensable disability rating is warranted. See 38 C.F.R. § 4.85. These findings also do not meet the criteria for an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 (a) or (b). A VA examination report dated in September 2008 shows a diagnosis of normal hearing from 250 to 1000 hertz, sloping to severe sensorineural hearing loss in the right ear and sloping to profound sensorineural hearing loss in the left ear. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 30 55 75 45 LEFT 25 30 60 70 46 Speech audiometry revealed speech recognition ability of 96 percent in each ear. Difficulty hearing the television and conversation in background noise was noted. Under Table VI, the both ears are assigned Roman numeral “I.” Under Table VII, if the poorer ear is rated I and the better ear is rated I, a noncompensable disability rating is warranted. See 38 C.F.R. § 4.85. Similarly, these results do not show an exceptional pattern of hearing impairment that would warrant application of Table VIA. 38 C.F.R. § 4.86. A VA audiological examination report dated in December 2009 shows that the Veteran reported an increase in his hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 30 55 70 44 LEFT 25 30 60 70 46 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. This had significant occupational effects. The impact of his hearing loss on occupational activities was poor social interactions and hearing difficulty. Under Table VI, the both ears are assigned Roman numeral “I.” Again, this warrants a noncompensable disability rating and no exceptional pattern of hearing loss is shown. See 38 C.F.R. §§ 4.85, Table VII; 4.86. In May 2011, the Veteran underwent a VA ears examination. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 35 50 70 45 LEFT 30 30 60 75 49 Speech audiometry revealed speech recognition ability of 96 percent in each ear. He was found to have moderate sensorineural hearing loss bilaterally. Again, under Table VI, the both ears are assigned Roman numeral “I,” which warrants a noncompensable disability rating and no exceptional pattern of hearing loss is shown. See 38 C.F.R. §§ 4.85, Table VII; 4.86. Additionally, the Veteran reported balance problems and dizziness at the May 2011 VA examination. Physical examination found no disturbance of balance. Nonetheless, he was diagnosed with status post perforated eardrums with residual intermittent balance problems and recurrent dizziness. It is noted that service connection for this disability was previously denied in a May 2012 rating decision. At the June 2012 Board hearing, the Veteran reported not being able to hear the telephone ring if there was any ambient noise. He had to unplug the surround sound on his television because he was unable to hear what people were saying when it was on. He wore hearing aids and noted that if he did not wear his hearing aids he would have to turn the television up so loud that his wife could not be in the room. His wife testified that the Veteran could not hear anyone unless he was facing them directly and he would get very angry if someone spoke to him without facing him. She reported that he was unable to hear the telephone ring or birds chirping outside. The Veteran testified that he was retired. A June 2012 private audiogram showed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 65 75 54 LEFT 30 35 70 75 53 Speech discrimination was 80 percent in the right ear and 90 percent in the left ear. There was a reported increase in hearing impairment, including difficulty understanding speech with background noise, even when wearing hearing aids. Under Table VI, the right ear is assigned Roman numeral “IV” and the left ear assigned Roman numeral “II.” Under Table VII, if the poorer ear is rated IV and the better ear is rated II, then a noncompensable disability rating is warranted. See 38 C.F.R. § 4.85. Again, no exceptional pattern of hearing loss is shown. See 38 C.F.R. § 4.86. A VA examination report dated in September 2014 shows the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 60 75 53 LEFT 30 35 65 75 51 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. This disability was not found to impact his ordinary conditions of daily life or his ability to work. Under Table VI, the both ears are assigned Roman numeral “I,” which warrants a noncompensable disability rating. See 38 C.F.R. § 4.85. Again, no exceptional pattern of hearing loss is shown. See 38 C.F.R. § 4.86. Based on the objective data of record, there is no support for assignment of an initial compensable disability rating for the Veteran’s service-connected bilateral hearing loss. The private and VA audiograms do not reveal audiometric results sufficient to warrant a 10 percent rating under 38 C.F.R. § 4.85. During the pendency of this appeal, the Veteran’s bilateral hearing loss has been manifested by no more than Level IV hearing in the right ear and Level II hearing in the left ear. A single level increase in either ear would be necessary to warrant a 10 percent disability rating, but hearing loss at that level is not reflected in the record. Therefore, a higher initial schedular disability rating for the service-connected bilateral hearing loss is not warranted. Also considered by the Board is whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director of Compensation Service for assignment of an extraschedular disability rating commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criteria for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran’s disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran’s disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran’s exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of Compensation Service, for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the Veteran is asserting that his bilateral hearing loss has other functional affects that are not contemplated by the rating criteria. Specifically, balance problems, dizziness, social isolation stemming from his inability to hear the telephone ring, his need to turn the volume of his television up which drove his wife to leave the room, his need to face a speaker, his inability to hear bird sounds, and his anger at having to ask others to repeat words to him. As noted above, the May 2011 VA examiner found that the Veteran’s balance problems and recurrent dizziness were attributable to his status post perforated eardrums. Service connection for this disability was denied in a May 2012 rating decision. As such, these symptoms cannot form the basis for an extraschedular disability rating. Additionally, service connection has already been established for PTSD with symptoms including marital difficulties, inability to establish and maintain effective relationships, feelings of detachment or estrangement from others, and unprovoked irritability. The January 2014 VA PTSD examiner did not differentiate which portion, if any, of these symptoms should be attributable to the Veteran’s service-connected bilateral hearing loss. Indeed, there is no medical finding that the social isolation, marital strife, and irritability described by the Veteran is attributable to his service-connected bilateral hearing loss. Moreover, to the extent that these symptoms are contemplated in the Veteran’s 50 percent disability rating for PTSD, reliance on them to form the basis for an extraschedular disability rating would violate VA’s prohibition of pyramiding. See 38 C.F.R. § 4.14. Accounting for the Veteran’s claimed symptoms that have been medically attributed to other conditions, the remaining symptoms of his service-connected bilateral hearing loss are no more than Level IV hearing in the right ear and Level II hearing in the left ear, which cause difficulty hearing the telephone, television, conversations, and birds. The rating schedule provides objective measurements reflecting loss of hearing at each of the relevant frequencies based on the average hearing threshold level. While it does not specifically list the types of sounds that are lost at each hearing threshold level, the Veteran’s objective degree of hearing loss is addressed by criteria found in the rating schedule. Therefore, the first prong of the Thun test is not satisfied and referral for extraschedular consideration is not warranted. DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Houbeck, Counsel