Citation Nr: 18154828 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 12-13 191 DATE: November 30, 2018 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to May 12, 2017 is denied. Entitlement to an extraschedular rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to a compensable rating for bilateral hearing loss since May 12, 2017 is remanded. FINDINGS OF FACT 1. Prior to May 12, 2017 the Veteran’s bilateral hearing loss was manifested by no worse than a Level I hearing loss bilaterally. 2. The functional effects of the Veteran’s tinnitus are contemplated by the rating criteria, and tinnitus is not manifested by factors such as a marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for a bilateral hearing loss, prior to May 12, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an extraschedular rating for tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to July 1974. He also served on a period of active duty for training from August 1970 to January 1971. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Hearing loss prior to May 12, 2017 The Veteran contends that his bilateral hearing loss was more severely disabling than represented by the noncompensable rating assigned prior to May 12, 2017. The Veteran was granted entitlement to service connection for bilateral hearing loss in a July 2006 rating decision, rated noncompensable effective from December 5, 2005. The Veteran appealed. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86 (a). In that situation, 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. After a complete review of the record, the Board finds that prior to May 12, 2017, the Veteran’s hearing loss was not manifested by greater than a Level I hearing loss bilaterally. At a VA examination in June 2006, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG. RIGHT 20 25 55 65 41.25 LEFT 25 30 55 60 42.5 Speech audiometry revealed speech recognition ability of 92 percent bilaterally. Application of the findings of the June 2006 examination to Tables VI and VIA in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss bilaterally which warrants a noncompensable rating. At a private audiological evaluation in August 2006, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG. RIGHT 25 25 45 55 37.5 LEFT 25 35 55 60 43.75 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. Application of the findings of the August 2006 examination to Tables VI and VIA in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss bilaterally which warrants a noncompensable rating. At a VA examination in March 2012, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG. RIGHT 20 20 30 60 32.5 LEFT 30 50 50 65 48.75 Speech audiometry revealed speech recognition ability of 92 percent bilaterally. The examiner opined that the Veteran’s hearing loss may cause some difficulty hearing clearly in background noise, but it would not significantly affect his ability to obtain and maintain substantially gainful employment. The examiner noted that the Veteran’s hyperacusis sometimes prevented him from wearing hearing aids. Application of the findings of the March 2012 examination to Tables VI and VIA in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss bilaterally. The Board has taken into consideration the Veteran’s complaints regarding the impact of hearing loss on his daily life, but the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. Pertinently, the Veteran reported having difficulty understanding speech and hearing in background noise. These are functional difficulties that would be expected to be caused by his recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss.). With regard to the reported impairment due to hyperacusis, that disorder was specifically found not to be a symptom of the Veteran’s hearing loss, or otherwise related to the Veteran’s active-duty service by a VA examiner in January 2018. There is no competent evidence to the contrary. Moreover, 38 C.F.R. § 4.85 specifies that hearing examinations for rating purposes will be conducted without the use of hearing aids. As such, the rating criteria explicitly contemplate unaided hearing, and the Veteran’s assertions that he is sometimes unable to wear his hearing aids does not support finding an exceptional disability picture. In other words, Diagnostic Code 6100 adequately contemplates all of the Veteran’s symptoms of decreased hearing. The Board acknowledges that the May 17, 2017 VA examination was not adequate, as discussed in the “remand” section below. However, any current audiological examination or retrospective opinion as to the possible functional impairment attributable to bilateral hearing loss would be less probative as to the period decided herein than the contemporaneous medical evidence already of record. Therefore, additional development with regard to this period is not warranted. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand is unnecessary where it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). Thus, the most probative medical evidence as to the severity of the Veteran’s hearing loss for the period discussed herein are the June 2006, August 2006, and March 2012 audiometric findings. Those reveal that the Veteran’s hearing loss did not warrant a compensable rating. As the Veteran does not have the education or training to offer a medical opinion challenging the adequacy of the testing, the Veteran’s assertions are not probative. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board concludes that the medical findings on examination are of greater probative value than the Veteran’s lay allegations regarding the severity of his hearing loss and that his functional impairment is adequately reflected by those medical findings. The claim is denied. Tinnitus The Veteran contends that his tinnitus is more severely disabling than represented by the currently assigned 10 percent rating. The Veteran was granted entitlement to service connection for tinnitus in a July 2006 rating decision, rated 10 percent disabling effective from December 5, 2005. The Veteran appealed. A 10 percent evaluation is assigned for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. Only a single evaluation may be assigned, whether the sound is perceived in one ear, both ears, or in the head, Id. at Note (2), and the Veteran is currently assigned the maximum schedular rating under the assigned diagnostic code. In August 2016 the Board denied entitlement to a rating in excess of 10 percent for tinnitus on a schedular basis, but remanded the issue of entitlement to an extraschedular rating, directing that the issue be referred to the Director of Compensation. The Director of Compensation issued an April 2018 Memorandum opining that the Veteran was not entitled to an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) for tinnitus. As the Director of Compensation has made its required initial determination, the Board has jurisdiction to adjudicate the extraschedular tinnitus issue on the merits. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996). According to the regulation, an extraschedular disability rating is warranted based 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. See 38 C.F.R. § 3.321 (b)(1). The United States Court of Appeals for Veterans Claims has set out three elements, 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 claimant’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). After a complete review of the record, the Board finds that the Veteran’s tinnitus symptoms are adequately contemplated by the rating schedule, and assignment of an extraschedular rating is not warranted. Throughout the period on appeal, the Veteran has characterized his tinnitus as being manifested by constant, severe ringing in the ears which interferes with his ability to hear conversation, sleep and concentrate. See e.g., February 2016 Board hearing testimony. The Veteran has also been noted to use sleeping medication and tinnitus maskers. A September 2007 VA treatment record noted that the Veteran reported symptoms of tension, anxiety and irritability. In a June 2010 letter, a friend, A.K., reported that the appellant stated that in the morning he experienced pain in the neck and shoulders which he believed was due to the ringing in his ears. A March 2012 VA examiner opined that the Veteran’s tinnitus was “bothersome” and “constant,” but would not significantly impact his ability to obtain or maintain employment. A May 2017 VA examiner noted that the Veteran reported his tinnitus caused “rebellion, self-destructive behavior, physical withdrawal, depression, history of underlying feelings of anger, hurt, confusion and helplessness.” A January 2018 VA examiner opined generally that tinnitus could affect the ability to function in the workplace through sleep deprivation, social isolation, irritability, or depression. On review, these functional effects of recurrent tinnitus are contemplated by the rating criteria. Specifically, the Veteran’s difficulty hearing conversation, sleeping and concentrating, as well as his use of sleeping medication and tinnitus maskers are impairments which are anticipated to result from recurrent ringing in the ears. These symptoms are therefore contemplated by the rating schedule. With regard to the reported symptoms of tension, anxiety, irritability, rebellion, self-destructive behavior, physical withdrawal, depression, feelings of anger, hurt, confusion and helplessness, these symptoms, which are psychiatric in nature, are fully contemplated by the Veteran’s service-connected adjustment disorder with mixed anxiety and a chronic depressed mood. See, e.g., July 2018 VA psychiatric examination. With regard to the reported pain in the neck and shoulders reported by A.K., the Board finds that the medical evidence of record does not show that neck and shoulder pain are attributable to the Veteran’s tinnitus. By contrast, the Veteran has reported pain from loud external sounds, such as “gym sounds, door slamming, spoons hitting his coffee cup when stirring coffee, motorcycle., etc.” August 2016 VA treatment record. However, this symptom has been attributed to the Veteran’s nonservice-connected hyperacusis. Hyperacusis was specifically found not to be a symptom of the Veteran’s tinnitus or hearing loss, or otherwise related to the Veteran’s active-duty service by a VA examiner in January 2018. The evidence clearly shows that “related factors (such) as (a) marked interference with employment or frequent periods of hospitalization” are not present here. There is no evidence of frequent hospitalization for tinnitus. While the Veteran has reported that his tinnitus interferes with his ability to work, the March 2012 VA examiner, indicated that tinnitus alone did not “markedly” interfere with employment. Rather, the medical evidence of record generally attributes the Veteran’s vocational impairment to the service-connected adjustment disorder with mixed anxiety and depressed mood, chronic type. This functional impairment is therefore contemplated by the assigned ratings for that disorder, as well as the assigned total disability rating based on individual unemployability. Based on the foregoing, the Board finds that the rating schedule adequately contemplates the Veteran’s symptoms of recurrent tinnitus. The disorder is not manifested by related factors such as a marked interference with employment or frequent periods of hospitalization. Thus, assignment of an extraschedular evaluation is not warranted. The claim is denied. REASONS FOR REMAND Hearing loss since May 12, 2017 The Veteran was provided a VA audiological examination in January 2018 in accordance with the August 2016 Board remand directives. However, the examiner failed to provide an assessment of the overall functional impairment produced by the Veteran’s hearing loss, and only addressed the functional impairment due to tinnitus. The United States Court of Appeals for Veterans Claims held that relevant to VA audiological examinations, 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). Additionally, the January 2018 Board remand specifically instructed that the examiner was to describe the functional impact of the Veteran’s hearing loss. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, remand is required to afford the Veteran an adequate examination which considers the functional impairment attributable to his hearing loss. Accordingly, the matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2018 to the present. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for an examination to determine the current severity of his bilateral hearing loss. The examiner must explicitly identify and discuss all functional impairments attributable to the Veteran’s bilateral hearing loss alone. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel