Citation Nr: 18152325 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-46 609 DATE: November 21, 2018 ORDER Entitlement to an initial compensable rating bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss has been manifested by no more than a hearing acuity of Level I for the right ear and a Level III for the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 3.159, 3.321, 4.1-4.14, 4.85, Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1958 to May 1961. The Veteran requested a Board hearing before a Veterans Law Judge on the September 2016 substantive appeal (VA Form 9). He withdrew the hearing request in October 2016 (see the Veteran’s October 2016 response to a hearing information letter). Entitlement to an initial compensable rating bilateral hearing loss Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In this case, the Veteran contends generally that a compensable rating is warranted for his bilateral hearing loss. In a September 2016 statement, the Veteran wrote that he had difficulty understanding conversation, with background noise, when anyone addresses him in the left ear, and, for example, that he was unable to understand nurses speaking to him during a September 2016 procedure. The Veteran also reported that there were several interruptions during the VA hearing examination, and that the audiologist did not spend enough time on the examination. Evaluations for bilateral hearing loss range from noncompensable to 100 percent. These evaluations are based on organic impairment of hearing acuity as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from the Veteran’s hearing loss; the rating schedule establishes 11 auditory acuity levels, designated from level I for slightly impaired hearing acuity through level XI for profound deafness. Further, schedular disability ratings for hearing impairment are “derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.” Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. In cases of exceptional hearing loss, i.e. when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels 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. 38 C.F.R. § 4.86(. The evidence in this case includes a November 2015 VA examination report where the Veteran was seen by a VA audiologist and evaluated for hearing loss. According to a November 2015 VA examination report, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 45 70 LEFT 45 50 60 60 60 Speech discrimination scores, performed with the Maryland CNC word list, were determined to be 98 percent in the right ear and 84 percent in the left ear. At that time, the Veteran did not report any functional impact of hearing loss. Applying the hearing loss rating criteria in 38 C.F.R. 4.85 at Table VI to the VA audiological examination results from the November 2015 examination yields a numerical designation of III (between 58 and 65 average pure tone decibel hearing loss, with between 84 and 90 percent speech discrimination) for the left ear and I (between 42 and 49 average pure tone decibel hearing loss, with between 92 and 100 percent speech discrimination) for the right ear. Entering the category designations for each ear into Table VII results in a noncompensable (0 percent) disability rating. None of the test results indicate exceptional patterns of hearing loss. The pure tone thresholds at 1000, 2000, 3000, and 4000 Hz are not all 55 decibels or more on any examination 30 decibels or less at 1000 Hz and 70 or more at 2000 Hz. See 38 C.F.R. § 4.86. In a September 2016 statement, the Veteran stated that his biggest problem is understanding while engaged in conversation and noted that background noise is also a problem for him, and having trouble when anyone addresses him in his left ear. The Veteran also indicated that he was unable to understand nurses speaking to him during a September 2016 procedure. The Board has considered the Veteran’s assertions regarding the severity of his hearing loss disability in the context of daily life. With regard to conduct of the November 2015 VA audiometric examination, the U.S. Court of Appeals for Veterans Claims (Court) has upheld VA’s policy of conducting audiometric testing in a sound-controlled room, which is designed to obtain the necessary information for the full and accurate application of the hearing loss rating schedule. Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007). The Court recognized in Doucette v. Shulkin, 28 Vet. App. 366 (2017), that VA’s audiometric tests are specifically designed to measure the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment; thus, absent any specific evidence to the contrary regarding irregularity in calibration or conduct of the examination, the Veteran’s assertion that there were several interruptions during his hearing exam and that the audiologist did not spend the time he needed to present his hearing difficulty is not sufficient to challenge the adequacy of the November 2015 VA audiology examination in this case. The VA examination report reflects that the VA examiner made clinical measures and observations regarding the severity of the disability at issue, interviewed the Veteran about past and present symptomatology and functional impairment of the bilateral hearing loss disability, and reported on the relevant rating criteria. For these reasons, the Board will rely on the findings in the November 2015 audiometric examination. In light of the Court’s holdings in Martinak and Doucette, the Veteran’s inability to hear or understand speech or to hear other sounds in various contexts have been sufficiently measured during the VA examination and such functional effects are contemplated by the schedular rating criteria. The November 2015 audiological results do not show that a compensable schedular rating is warranted for the Veteran’s bilateral hearing loss. The November 2015 VA examination report represents the best evidence for deciding the claim the evidence that contain comprehensive audiometric testing sufficient for rating the disability. Extraschedular Referral Consideration The Board has considered whether referral for extraschedular consideration is warranted for the service-connected bilateral hearing loss. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate for the service-connected bilateral hearing loss. The schedular rating criteria for rating hearing loss provide for disability ratings based on audiometric evaluations, to include speech discrimination and pure tone testing. In this case, the Veteran’s hearing loss symptoms and described hearing impairments are fully contemplated by the schedular rating criteria. The Veteran’s hearing loss disability has manifested in difficulty hearing and understanding speech. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high-pitched sounds. The ability of the Veteran to understand speech when background noise is present is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing. See Doucette, 28 Vet. App. 366 (holding “that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”). The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran’s difficulties functioning in a social environment due to hearing loss. Accordingly, the Board finds that the Veteran’s reported hearing-related difficulties are factors contemplated in the regulations and schedular rating criteria. See also Doucette (holding 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... an inability to hear or understand speech or to hear other sounds in various contexts... are contemplated by the schedular rating criteria”). Comparing the Veteran’s disability level and symptomatology of the bilateral hearing loss to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. As there are no additional expressly or reasonably raised issues presented on the record, and absent any exceptional factors associated with hearing loss, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (Continued on the next page)   For these reasons, the Board finds that the criteria for an initial compensable rating for bilateral hearing loss have not been met for any period. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.85, Diagnostic Code 6100. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Williams, Counsel