Citation Nr: 18155274 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-48 152 DATE: December 4, 2018 ORDER 1. Entitlement to an initial rating greater than 10 percent for bilateral hearing loss is denied. 2. Entitlement to a rating greater than 10 percent for tinnitus is denied. FINDINGS OF FACT 1. The appellant’s service-connected bilateral hearing loss disability has manifested as no more than Level II hearing impairment in his right ear and as Level XI hearing impairment, the maximum level, in his left ear. 2. The appellant is currently assigned a 10 percent evaluation for his tinnitus under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.385, 4.85, Diagnostic Code 6100. 2. The criteria for entitlement to a rating greater than 10 percent for tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from August 1961 to August 1963. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which assigned the appellant a 10 percent initial rating for his hearing loss disability, and a November 2014 rating decision which denied a rating greater than 10 percent for his service connected tinnitus. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on the Veteran’s average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous...” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of an initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to an initial rating greater than 10 percent for bilateral hearing loss is denied. The appellant contends that his hearing loss disability was more disabling than initially rated and has progressed in severity since his initial rating was assigned. After a review of the evidence of record, the Board finds the preponderance of the evidence is against assigning the appellant’s service-connected bilateral hearing loss a rating greater than 10 percent during any period on appeal. For VA purposes, impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth in 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). 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. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels, represented by Roman numerals, from Level I, for lower levels of hearing loss, through Level XI, for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85(b). The “pure tone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VI A. 38 C.F.R. § 4.85(d). Table VII, “Percentage Evaluations for Hearing Impairment,” is used to determine the percentage evaluation when combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. 4.85(e). In cases where the impaired hearing is service-connected in only one ear, to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds of the frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or greater. The second is where the pure tone thresholds are 30 decibels or less at frequencies of 1000 Hz and below, and are 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. Since the appellant initially filed his claim for service connection for hearing loss, he has gone through auditory examinations in November 2009, June 2014, September 2014, May 2016, and August 2018. On the authorized audiological evaluation in November 2009, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 20 30 LEFT 30 85 15 120 115 The pure tone threshold average was 18.75 dB in the appellant’s right ear and 83.75 dB in the appellant’s left ear. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 2 percent in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.86 yields a Level I designation for the right ear and Level XI in the left ear. Transferring these results to Table VII in 38 C.F.R. § 4.86 results in the assignment of a 10 percent rating. See 38 C.F.R. § 4.85, Tables VI and VII. On the authorized audiological evaluation in June 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 10 35 35 LEFT 45 90 105+ 105+ 105+ The pure tone threshold average was 25 dB in the right ear and 101.25 dB in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 0 percent in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.86 yields a Level I designation for the right ear and Level XI in the left ear. Transferring these results to Table VII in 38 C.F.R. § 4.86 results in the assignment of a 10 percent rating. See 38 C.F.R. § 4.85, Tables VI and VII. As the appellant’s hearing is greater than 55 dB in the 1000, 2000, 3000, and 4000 Hz frequencies in the left ear, the Board has considered the application of Table VIA. See 38 C.F.R. §§ 4.85, 4.86(a). Use of this Table does not produce results of a higher Roman numeral assignment in either ear, and as such, the Board finds that application of 38 C.F.R. § 4.86(a) is not warranted. On the authorized audiological evaluation in September 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 20 40 40 LEFT 75 105 105+ 105+ 105+ The pure tone threshold average was 32.5 dB in the right ear and 105+ dB in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 0 percent in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.86 yields a Level I designation for the right ear and Level XI in the left ear. Transferring these results to Table VII in 38 C.F.R. § 4.86 results in the assignment of a 10 percent rating. See 38 C.F.R. § 4.85, Tables VI and VII. As the appellant’s hearing is greater than 55 dB in the 1000, 2000, 3000, and 4000 Hz frequencies in the left ear, the Board has considered the application of Table VIA. See 38 C.F.R. §§ 4.85, 4.86(a). Use of this Table does not produce results of a higher Roman numeral assignment in either ear, and as such, the Board finds that application of 38 C.F.R. § 4.86(a) is not warranted. On the authorized audiological evaluation in May 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 35 40 LEFT 100 105+ 105+ 105+ 105+ The pure tone threshold average was 28.75 dB in the right ear and 105+ dB in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 0 percent in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.86 yields a Level I designation for the right ear and Level XI in the left ear. Transferring these results to Table VII in 38 C.F.R. § 4.86 results in the assignment of a 10 percent rating. See 38 C.F.R. § 4.85, Tables VI and VII. As the appellant’s hearing is greater than 55 dB in the 1000, 2000, 3000, and 4000 Hz frequencies in the left ear, the Board has considered the application of Table VIA. See 38 C.F.R. §§ 4.85, 4.86(a). Use of this Table does not produce results of a higher Roman numeral assignment in either ear, and as such, the Board finds that application of 38 C.F.R. § 4.86(a) is not warranted. On the authorized audiological evaluation in August 2018, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 40 50 55 LEFT 105 120 120 120 120 The pure tone threshold average was 45 dB in the right ear and 120 dB in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 0 percent in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.86 yields a Level I designation for the right ear and Level XI in the left ear. Transferring these results to Table VII in 38 C.F.R. § 4.85 results in the assignment of a 10 percent rating. See 38 C.F.R. § 4.85, Tables VI and VII. As the appellant’s hearing is greater than 55 dB in the 1000, 2000, 3000, and 4000 Hz frequencies in the left ear, the Board has considered the application of Table VIA. See 38 C.F.R. §§ 4.85, 4.86(a). While in this instance the application of Table VIA does produce a result of Level XI hearing in the left ear and Level II hearing in the right ear, when transferring these results to Table VII to determine the appellant’s disability rating, the result is still a 10 percent rating for hearing loss. At all 5 examinations, the appellant described the functional impact of his hearing loss disability as difficulty hearing during conversations, difficulty localizing sounds, and needing to have people talk to him from the right side where his hearing is better. He has also stated that he has lost enjoyment in listening to music, he turns up the volume louder on the radio, and responds with “what?” to people when they speak to him. At his most recent August 2018 private examination, the appellant also indicated that he has experienced symptoms of vertigo in the previous 2 years, approximately 2 times per year, each lasting for several seconds. Considering this evidence, the Board finds that the preponderance of the evidence is against the assignment of an initial rating greater than 10 percent, or the assignment of a rating greater than 10 percent for any portion of the period on appeal. The Board has considered the appellant’s description of his hearing loss disability as discussed above. However, 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. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to the current disability ratings. In other words, the Board is bound by law to apply VA’s rating schedule based on the appellant’s audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record presents no basis for assignment of a compensable schedular rating. In exceptional cases an extraschedular rating may be provided for a disability. 38 C.F.R. § 3.321. The Court has set out a three-part test, 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). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. The Board finds that the rating criteria contemplate the appellant’s reported decreased hearing acuity and difficulty in understanding conversational speech. “[W]hen a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.” Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). The Board further finds that other than difficulty hearing or understanding speech, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss not contemplated by the rating criteria. He is in receipt of a separate compensable rating for tinnitus. The Board notes that the appellant did report symptoms of vertigo in an August 2018 private medical opinion. The appellant described symptoms of vertigo “for the past two years” at a frequency of two episodes per year and each episode lasting several seconds. There was no indication from the private examiner though that this report of symptoms was in any way related to the appellant’s hearing loss disability. Further the Board notes that even if these subjective reports of vertigo symptoms were part and parcel of the appellant’s hearing loss disability, subjective reports of vertigo symptoms occurring twice yearly for several seconds do not provide a sufficient basis to assign a higher rating, as there is no indication that such symptoms produce additional loss of earning capacity. For purposes of comparison, the assignment of a compensable rating for a peripheral vestibular disorder under 38 C.F.R. § 4.87, Diagnostic Code 6204 require “[o]bjective findings supporting the diagnosis of vestibular disequilibrium…before a compensable evaluation can be assigned under this code.” Neither at this August 2018 private examination where prior brief instances of vertigo symptoms were noted, nor at any other VA or private examination of the appellant’s hearing, has it been suggested that the appellant has objective findings supporting the diagnosis of vestibular disequilibrium or vertigo. Therefore, the evidence of record does not support the assignment of a compensable rating for vertigo symptoms, even if the disability were causally linked with the appellant’s hearing loss disability. Moreover, the Board finds that even considering the appellant’s reports of sporadic and brief occurrences of vertigo symptoms, occurring twice a year for a few seconds at a time, this case does not present other indicia of an exceptional or unusual disability picture. The appellant’s disability has not caused frequent periods of hospitalization. Further, there is no evidence of record indicating that these symptoms create a marked interference in the appellant’s employment. As noted above, the only assertions the appellant has made with regards to functional limitations due to his hearing loss have been an inability to hear out of the left ear, having to ask people to repeat themselves, having to ask people to sit only on his right side, and one report of vertigo symptoms unsupported by objective findings. The Board does not find that these symptoms present indicia of an exceptional or unusual disability picture in this case. The Board finds his disability picture is contemplated by the Rating Schedule, such that the assigned schedular rating is adequate because the rating criteria reasonably describe the appellant’s disability level and symptomatology. Therefore, no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. Further, the evidence does not demonstrate anything exceptional or unusual about the appellant’s bilateral hearing loss that would render the schedular criteria inadequate. For these reasons, the Board finds that the preponderance of the evidence is against the award of an initial rating greater than 10 percent for bilateral hearing loss, or greater than 10 percent for any portion of the period on appeal. 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI and Table VII. As such, the claim is denied. 2. Entitlement to a rating greater than 10 percent for tinnitus is denied. Under 38 C.F.R. § 4.87, Diagnostic Code 6260, recurrent tinnitus warrants a maximum 10 percent rating. See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (holding that 38 C.F.R. § 4.25(b) and Diagnostic Code 6260 limit a veteran to a single disability for tinnitus, regardless of whether the tinnitus is unilateral or bilateral). The Board notes that the appellant reported experiencing constant tinnitus since his active duty in a January 2009 statement in support of his claim. He has described his tinnitus as being a “constant low-pitch” sounding like “rushing water.” See May 2016 VA Examination. The appellant’s service-connected bilateral tinnitus has been assigned the maximum schedular rating available from the effective date of the award of service connection. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (affirming VA’s long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether unilateral or bilateral). Accordingly, no higher schedular evaluation is warranted and the claim is denied. 38 C.F.R. § 4.87, Diagnostic Code 6260. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel