Citation Nr: 1806603 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-04 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a schedular rating in excess of 10 percent for bilateral hearing loss. 2. Entitlement to a rating in excess of 20 percent for bilateral hearing loss on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b)(1). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service in the Navy from February 1978 to April 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Chicago, Illinois. A video hearing was held in August 2015 before the undersigned. In February 2016, the Board remanded this matter for further development. The requested development has been performed and the matter is now ready for appellate review. For reasons made clear in the remand below, the Board has bifurcated the Veteran's claim for an initial rating in excess of 10 percent for bilateral hearing loss to reflect schedular and extra-schedular consideration, as reflected on the title page. The issue of entitlement to a rating in excess of 20 percent for bilateral hearing loss on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b)(1) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT Audiological evaluations which may be used for VA rating purposes demonstrate that the Veteran had level V hearing for both the left and right ear at the time of August 2010 and December 2013 VA audiological examinations. CONCLUSION OF LAW The criteria for a schedular 20 percent disability evaluation, and no more, for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran has been assigned a 10 percent disability evaluation for his bilateral hearing loss. He contends that the severity of his condition more closely reflects the severity required for a higher disability rating. The VA rating scheme for the evaluation of hearing loss provides ratings from noncompensable to 100 percent based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests which average puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85 (2017). The evaluation of hearing impairment applies a formula which is essentially a mechanical application of the VA Schedule for Rating Disabilities to numeric designations after audiology evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a) (2017). Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level. Alternatively, Table VIA uses only the puretone averages to give each ear a numeric designation. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that veterans experience. 38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Additionally, 38 C.F.R. § 4.86(b) provides that if the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an evaluation can be based on either Table VI or Table VIA, whichever results in a higher numeric designation, and that designation will then be elevated to the next higher Roman numeral. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. The Veteran has argued that his hearing loss is more severe than is reflected by his assigned evaluations. Although the Veteran is competent to attest to his observations and laypeople may, in some circumstances, opine on questions of diagnosis and etiology, in this case, the Veteran is not competent to diagnose himself with a particular level of hearing impairment. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(1) (2017) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Specifically, while the Veteran is clearly competent to describe what he experiences (diminished hearing), he is unable to provide competent evidence as the audiometry or measured level of his hearing loss to support a higher disability rating. In March 2010, the Veteran requested an increased disability evaluation for his bilateral hearing loss. In conjunction with his claim, the Veteran submitted the results of a January 2010 private audiogram, which revealed decibel level readings of 95, 110, - , and 105 in the right ear and 100,105, - , and 105 at 1000, 2000, 3000, and 4000 Hertz. Speech recognition testing was noted to be 36 percent in the right ear and 20 percent in the left ear. In a January 2010 report accompanying the readings, the audiologist indicated that here had been a significant decrease in hearing in both ears. The examiner reported that the Veteran had profound hearing loss from 250-8000 Hertz, bilaterally, and stated that word recognition was extremely poor (36 percent right ear, 20 percent left ear). In a May 2010 statement, the Veteran's wife indicated that the Veteran's hearing loss had been getting worse over the past several years. She noted he was unable to hold a decent job because of his inability to understand conversations, either in person or on the phone. She also stated that he would become very depressed and angry when they were entertaining guests and he could not hear or understand the conversations. In conjunction with his claim, the Veteran was afforded a VA examination in June 2010. The Veteran reported using hearing aids. He indicated that his hearing loss caused him to be depressed. He noted difficulty hearing and understanding speech and stated that he was not able to interact as a result of his hearing loss. In addition, he reported specific difficulty with sound localization. The Veteran was unemployed. He stated that he previously worked for the Chicago Transit Authority (CTA) and that while employed his hearing loss caused him to need assistance at work. He also noted that his hours were reduced at work and that he believed his hearing loss caused this cut-back. The examiner indicated that cursory otoscopy revealed clear external auditory canals in both ears. Pure tone and speech audiometry was attempted using ER-3A insert earphones. Speech audiometry was begun and inconsistent results were noted. The examiner indicated that he had obtained a copy of the Veteran's most recent audiogram completed in November 2009. When presenting spondee words at that time of the current examination at 90 dB HL, the Veteran would not respond or responded by providing half of the word ("birth" for birthday, "ear" for eardrum) The examiner observed that the Veteran's previous spondee threshold (Nov. 2009) in both ears was 40 dB HL. This examiner stated that he informed the Veteran that inconsistencies were present in the testing and re-instructed him on the test task. He reported that the Veteran then stated "I will tell you when I can hear it". The examiner observed that at no point in the case history review did the Veteran report a recent or sudden change in his hearing. Testing was then attempted using pure tone stimuli. The examiner observed that the previous audiograms noted a mild sloping to severe sensorineural hearing loss in both ears. The examiner stated that the Veteran's responses today were demonstrating a flat, severe low frequency hearing loss in the right ear and a profound flat mid frequency hearing loss in the left ear. It was noted that the test results were extremely inconsistent and deemed unsuitable for rating purposes. The examiner reported that no reliable test results could be obtained and that all responses provided by the Veteran were unsuitable for rating purposes. In a June 2010 private audiologist report, it was noted that the Veteran was being seen for a non-sedated Auditory Brainstem Response (ABR) evaluation. He was referred for this evaluation due to a discrepancy in objective and subjective test measures obtained previously. He was referred for the ABR in order to help determine audiometric thresholds. The Veteran was last seen in their clinic in January 2010. At that time, behavioral thresholds suggested a profound sensorineural hearing loss; however, acoustic reflexes were present with ipsilateral and contralateral stimulation. The Veteran was noted to wear open fit hearing aids, which he obtained at a VA Medical Center. However, the Veteran arrived with only the left hearing aid and stated he lost the right hearing aid. Distortion Product Otoacoustic Emissions (DPOAEs) were absent in both ears from 750-8kHz, bilaterally, which suggested cochlear (outer hair cell) dysfunction of the cochlea, The ABR was noted to be a test of neural synchrony, not hearing sensitivity, from which hearing sensitivity was estimated. The procedure measured auditory sensitivity up to the level of the inferior colliculus; it did not assess cortical function. Acoustic stimuli consisted of broad band clicks for assessment of mid-to-high frequency sensitivity as well as the integrity of the peripheral auditory system. Multiple parameter protocol manipulations were utilized in order to obtain these test results. Wave forms demonstrated poor morphology and repeatability for all test stimuli. A Latency/Intensity Function Study was attempted. Waveforms could not be replicated in either ear with stimuli at equipment limits to click stimuli representing the 2-4Khz region. Further testing, Auditory Tone-burst Stimuli, could not be performed due to time constraints. Test results revealed absent DPOABs and no replicable ABR waveforms to click stimuli at equipment limits. However, it was to be noted that the Veteran was able to carry on conversations and respond to instructions at normal conversation levels without his hearing aid in the left ear during the appointment. Due to these discrepancies, it was suggested that the Veteran return for a repeat audiogram in an attempt to confirm degree of hearing loss in both ears. At the time of an August 2010 VA audiogram, the Veteran was noted to have decibel level readings of 25, 50, 70, and 75 in the right ear and 25, 65, 65, and 70 in the left ear at 1000, 2000, 3000, and 4000 Hertz. Speech recognition was recorded twice, using recorded speech the first time and live voice testing the second time, revealing scores of 68 and 84 percent for the right ear and 72 and 80 percent for the left ear. At the time of a September 2010 private audiogram, the Veteran was noted to have decibel level readings of 60, 80, - , and 90 in the right ear and 60, 85, - , and 90 in the left ear at 1000, 2000, 3000 and 4000 Hertz. Speech recognition was 35 percent in the left and right ear. The examiner indicated that the results were elevated and not true thresholds, non-organic. A September 2010 private audiogram performed at Holy Cross Hospital revealed decibel level readings of 80, 90, - , and 105 in the right ear and 110, 105, - , and 110 in the left ear at 1000, 2000, 3000 and 4000 Hertz. Speech discrimination was not tested. The Veteran was afforded an additional VA audiological examination in November 2011. The Veteran reported continuing to have bilateral hearing loss, which he stated had become worse since 2009. He stated that he could not hear high pitched sounds and was unable to localize where sounds were coming from. He had no history of ear infections or ear surgery and had no complaints of otalgia, otorrhea, dizziness or tinnitus. He reported pain and drainage five days prior to this evaluation. Audiologic findings were found to be inconsistent. Testing was discontinued as the Veteran was falling asleep during testing. It was recommended that the Veteran be re-scheduled for audiologic evaluation due to the inconsistent responses. At the time of a January 2013 VA examination, decibel level readings of CNT (could not test) were recorded at each Hertz level. The examiner indicated that due to inconsistent responses by the Veteran during the audiologic evaluation, the reported test results were not considered to be reliable and did not provide an accurate representation of current hearing sensitivity. Speech recognition testing was also not performed as it was not appropriate because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that made combined use of puretone average and speech discrimination scores inappropriate. The examiner noted that the Veteran reported that that he could not hear conversation without looking directly at the speaker. The Veteran reported that he required repetitions in conversation. At the time of a December 2013 VA audiogram, the Veteran was noted to have decibel level readings of 40, 65, 75, and 70 in the right ear and 40, 60, 65, and 70 in the left ear at 1000, 2000, 3000, and 4000 Hertz. Speech recognition was recorded twice, revealing scores of 72 and 76 percent for the right ear and 68 and 76 percent for the left ear. At his August 2015 hearing, the Veteran testified that his hearing had worsened over time. He noted having problems hearing his grandchildren, playing the TV too loud, having to ask people to repeat conversations, not able to understand conversations, and not being able to properly answer questions. He reported wearing hearing aids all the time. In February 2016, the Board remanded this matter for further development, to include a VA examination, with the examiner being requested to address the functional impact resulting from hearing loss and its effects on daily living. The examiner was scheduled for a VA examination in April 2016. The examiner noted that multiple C&P audiology reports from April 1997 through January 2013 were reviewed and that most of the audiology evaluations were deemed unreliable and not adequate for rating purposes. Audiology testing revealed CNT decibel findings for each Hertz level. The examiner indicated that the Veteran presented with profound hearing loss bilaterally. He did not repeat spondaic words for speech reception threshold testing. However, ipsilateral and contralateral acoustic reflexes were present at 500-1000Hz with probe in the left ear and ipsilateral reflexes were present at 500-1000Hz with probe in the right ear. Due to the inconsistent responses by the Veteran during the audiologic evaluation, the reported test results were not considered to be reliable and did not provide an accurate representation of current hearing sensitivity and were not adequate for rating purposes. The examiner indicated that due to the extensive history of "inadequate for rating purposes" C&P audiology exams, it was recommended that the Veteran be seen at another VA facility for future exams. CNT responses were also reported for speech recognition results. The examiner indicated that the use of the word recognition score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that made combined use of puretone average and word recognition scores inappropriate. A diagnosis of bilateral sensorineural hearing loss for all frequency ranges was reported. As to impact of the Veteran's hearing loss on ordinary conditions of daily life including an inability to work, the examiner reported yes and stated refer to prior audiological histories. The Veteran was afforded an additional VA examination in May 2016 by another VA audiologist. Audiology testing revealed CNT decibel findings for each Hertz level with the exception of 3000 Hertz in the left ear, where a decibel level reading of 105+ was reported. The examiner stated that attempts were made to test the frequencies and instructions were given several times. However, his responses were very inconsistent and no valid thresholds could be obtained. The examiner indicated that the Veteran's responses were very inconsistent in spite of repeated instructions; they were not reliable, they did not provide accurate information regarding the Veteran's hearing acuity, and, therefore, were not adequate for rating purposes. CNT responses were also reported for speech recognition results. The examiner indicated that the use of the word recognition score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that made combined use of puretone average and word recognition scores inappropriate. Diagnoses of bilateral sensorineural hearing loss for all frequencies were rendered. As to the impact on the ordinary conditions of daily life, including ability to work, the examiner indicated that the Veteran reported that he had difficulty hearing and understanding speech, more so in a noisy environment; he had difficulty with sound localization; TV was too loud according to family; and he had to look at the speaker and concentrate to be able to hear and understand. The Veteran reported that he had been retired for many years. While the Board notes that the Veteran has been afforded numerous audiological evaluations throughout the course of this appeal, the results of these examinations, with the exception of the August 2010 and December 2013 VA audiograms, may not be considered for VA rating purposes. As noted above, the VA rating scheme for the evaluation of hearing loss provides ratings from noncompensable to 100 percent based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests which average puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. As it relates to the March 2010 and the two September 2010 private audiological evaluations, there were no results reported for 3000 Hertz. Thus, the findings reported may not be used for VA rating purposes. The June 2010 private audiological report does not contain any decibel level testing results at the required Hertz levels; therefore, these results may also not be used for rating the Veteran's hearing loss. As to the June 2010 and November 2011 VA audio examinations, the examiners indicated that the scores were inconsistent/unreliable. Thus, the results obtained from these examinations can also not be used to rate the Veteran's hearing loss. As to the January 2013, April 2016, and May 2016 VA examinations, the examiners all reported that the Veteran could not be tested at the required Hertz levels. The January 2013 examiner indicated that due to inconsistent responses by the Veteran during the audiologic evaluation, the reported test results were not considered to be reliable and did not provide an accurate representation of current hearing sensitivity. The April 2016 examiner stated that due to the inconsistent responses by the Veteran during the audiologic evaluation, the reported test results were not considered to be reliable and did not provide an accurate representation of current hearing sensitivity and were not adequate for rating purposes. Finally, the May 2016 VA examiner indicated that the Veteran's responses were very inconsistent in spite of repeated instructions; were not reliable, and did not provide accurate information regarding the Veteran's hearing acuity, and, therefore, were not adequate for rating purposes. The examiners also indicated that the use of the word recognition score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that made combined use of puretone average and word recognition scores inappropriate. In contrast, the August 2010 and December 2013 VA audiological examination results provided sufficient detailed responses to properly rate the Veteran's hearing. The August 2010 VA examination results revealed an average decibel level reading of 55 in the right ear and 56 in the left ear. Using the speech recognition score most favorable to the Veteran resulted in a speech recognition score of 68 in the right ear and 72 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran's right ear corresponded with Level V hearing loss, the left ear corresponded with Level V hearing loss. These levels correspond with a 20 percent evaluation. The December 2013 VA examination results revealed an average decibel level reading of 62 in the right ear and 59 in the left ear. Using the speech recognition score most favorable to the Veteran resulted in a speech recognition score of 72 in the right ear and 68 percent in the left ear, Using Table VI in 38 C.F.R. § 4.85, the Veteran's right ear corresponded with Level V hearing loss, the left ear corresponded with Level V hearing loss. These levels correspond with a 20 percent evaluation. As a result of the above examinations, the criteria for a 20 percent disability, and no more, have been met. The Board has considered the provisions of 38 C.F.R. § 4.86, which addresses exceptional patterns of hearing impairment, but the Veteran's pure tone thresholds do not conform to criteria listed in this regulation. In providing its findings, the Board acknowledges the Veteran's complaints regarding impact of his hearing loss on his daily activities, and the VA's obligations of resolving reasonable doubt in favor of the Veteran. However, the Board notes that the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are made. There is no doubt as to the proper evaluations to assign, and thus no doubt to resolve in favor of the claimant. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA, VII, DC 6100. The RO and the Board are bound by applicable laws and regulations promulgated by the VA. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). Consideration of factors wholly outside the schedular rating criteria would constitute error as a matter of law. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Accordingly, the preponderance of the evidence weighs against assigning higher ratings. 38 C.F.R. §§ 4.85, 4.86. In sum, the application of the rating schedule to the numeric designations assigned based on the VA audiological examination reports demonstrate that the appropriate rating for the bilateral hearing loss disability is no more than 20 percent. Here, the Board finds that the preponderance of evidence is against the finding that a higher rating during any relevant period is warranted. ORDER A schedular 20 percent disability evaluation, and no more, for bilateral hearing loss, is granted. REMAND Extraschedular Rating for Bilateral Hearing Loss An extraschedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In this case, there is evidence of an unusual disability picture, i.e. a disability which manifests with symptoms not contemplated by the rating schedule. There is also evidence of interference with employment. The Veteran has on several occasions indicated that it is his belief that his hearing loss interfered with his work. He has also reported that it was his belief that his hearing loss eventually led to a reduction in his hours causing him to leave his employment. The Veteran's wife has indicated he was unable to hold a decent job because of his inability to understand conversations, either in person or on the phone. Accordingly, the evidentiary record contains possible evidence of marked interference with employment. Accordingly, the case is REMANDED for the following action: 1. Refer the matter of the Veteran's entitlement to a rating in excess of 20 percent for bilateral hearing loss to the Director of Compensation Service, pursuant to the provisions of 38 C.F.R. § 3.321(b), for a determination as to whether an extra-schedular rating is warranted. The Director is asked to discuss whether the schedular criteria are adequate to rate the disability, and, if not, whether there is evidence of any marked interference with employment, in light of all pertinent lay and medical evidence, should be requested. In doing so, the Director is asked to address the Veteran's specific contentions and incorporate his personal information in the memorandum. 2. After the above has been completed, the RO must review the record and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the remaining issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs