Citation Nr: 1808557 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-28 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.321. 2. Entitlement to a rating in excess of 10 percent for bilateral tinnitus on an extra-schedular basis pursuant to 38 C.F.R. § 3.321. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1953 to June 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Board remanded the appeal for additional development. Then, in September 2015, the Board issued a decision denying the Veteran's claims for higher ratings for hearing loss and tinnitus on a schedular and extra-schedular basis. The Veteran subsequently appealed the issue of entitlement to initial ratings in excess of 10 percent for bilateral hearing loss and bilateral tinnitus on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 to the United States Court of Appeals for Veterans Claims (Court), and in May 2017, the Court issued a Memorandum Decision vacating the Board's decision to the extent that it denied extra-schedular ratings for hearing loss and tinnitus. To that end, the September 2015 decision was vacated and remanded so as to allow the Board to provide adequate reasons and bases as to the denial of the referral for extra-schedular consideration. In an August 2017 rating decision, the RO granted the Veteran's claim for an increased schedular rating for his bilateral hearing loss. In December 2017, the Veteran submitted a letter expressing dissatisfaction with the increased rating. The Veteran is advised that if he wishes to pursue the schedular increased rating claim further, his notice of disagreement must be submitted on the form prescribed by the Secretary within one year of the August 2017 decision. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss does not result in symptoms not contemplated by the applicable rating criteria. 2. The Veteran's bilateral tinnitus does not result in symptoms not contemplated by the applicable rating criteria. CONCLUSIONS OF LAW 1. The criteria for referral for extra-schedular consideration pursuant to 38 C.F.R. § 3.321 for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321 (2017); Doucette v. Shulkin, 28 Vet. App. 366 (2017). 2. The criteria for referral for extra-schedular consideration pursuant to 38 C.F.R. § 3.321 for a rating in excess of 10 percent for bilateral tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that the May 2017 Memorandum Decision was narrow in scope. Specifically, the Court did not disturb the Board's September 2015 findings with regard to the denial of higher schedular ratings for the Veteran's bilateral hearing loss and tinnitus. Additionally, the Court further ruled that the Veteran failed to demonstrate that distraction caused by tinnitus was not contemplated by the schedular rating. The Court also found no merit in the Veteran's argument that the August 2013 VA examiner's failure to review the claims file rendered the opinion inadequate. In short, the sole inadequacy in the September 2015 Board decision identified by the Court was the Board's perceived failure to determine whether the Veteran's reported balance problems, ear popping, and pressure in his ears were contemplated by the rating schedule for hearing loss and tinnitus. Furthermore, in the appellate filings, the Veteran did not challenge or assert any error in the Board's conclusion that referral for consideration of entitlement to an extra-schedular rating on a collective basis was not warranted under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). While the appeal to the Court was decided in a Memorandum Decision, a case governing matters remanded to the Board by virtue of joint motions for remand is instructive as to the Board's duty to discuss aspects of the prior decision that are undisturbed by the Court's ruling. In this regard, "when an attorney agrees to a [JMR] based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion, see Forcier [v. Nicholson, 19 Vet. App. 414,] 426 [(2006)], and those terms will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed." Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), (vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Here, neither the Veteran nor his representative has raised any challenge or issue beyond those addressed in the Memorandum Decision. Based on the foregoing, and in the interest of administrative efficiency, the Board will proceed by addressing only that aspect of its September 2015 decision that the Court identified as inadequate. Id. As such, the only question presently on appeal before the Board is whether referral for extra-schedular consideration pursuant to 38 C.F.R. § 3.321 for ratings in excess of 10 percent for bilateral hearing loss and tinnitus is warranted. The Board recognizes that where a case has been remanded to the Board, the order of the Court constitutes the law of the case, and the Board is bound to follow the Court's mandate. See Winslow v. Brown, 8 Vet. App. 469, 472 (1996). The Board has done so here, explicitly considering the issue addressed by the Memorandum Decision in the discussion below. An extra-schedular 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 Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, 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 extra-schedular rating. Id. Notably, shortly before the May 2017 Memorandum Decision was issued, the Court rendered a decision addressing extra-schedular consideration in claims for increased ratings for hearing loss. In Doucette, supra, the Court held that the rating criteria for hearing loss contemplates the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA's audiometric tests are designed to measure. Turning to the first element of Thun outlined above, to warrant a referral for extra-schedular consideration, the Veteran's disability level and symptomatology due to either his hearing loss or tinnitus must not be adequately contemplated by the currently assigned schedular ratings. Regarding the currently assigned schedular criteria, ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is 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). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, note 2; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Based on the symptoms the Veteran reported experiencing during the course of the appeal, the Board finds that step one of the Thun analysis has not been satisfied as his credibly reported symptoms are reasonably described by the rating criteria associated with the diagnostic codes assigned to his bilateral hearing loss and bilateral tinnitus. In this regard, as noted in the Memorandum Decision, at an August 2013 VA hearing loss examination, the Veteran reported experiencing balance issues, popping in his ears, and pressure in his ears; however, it was unclear whether such was related to his hearing loss or tinnitus or what functional effects these symptoms might cause. After a review of the evidence of record, the Board finds the Veteran's reports of experiencing balance issues, popping in the ears, and pressure in the ears are not credible. In this regard, while receiving pre-audiometric testing in April 2009, the Veteran specifically denied experiencing balance issues. Thereafter, during his June 2009 audiological evaluation, he denied experiencing disorders associated with hearing loss (i.e. vertigo) and did not report popping or pressure in the ears. Additionally, while the Veteran alleged falling frequently in a December 2017 submission, he routinely denied falling while receiving VA treatment. Indeed, in June 2010, June 2011, July 2012, May 2013, September 2013, and May 2015, the Veteran reported he had not fallen at any time in the previous year. Thus, he reported not falling from June 2009 - June 2010, June 2010 - June 2011, July 2011 - July 2012, May 2012 - May 2013, September 2012 - September 2013, and May 2014 - May 2015. Admittedly, he could possibly have fallen between September 2013 and May 2014 or after May 2015, but such is not supported by the VA treatment records as he never reported falling or injuring himself to VA clinicians. In fact, he denied experiencing vertigo in September 2013. Additionally, he did not report falling or vertigo to the November 2011 VA examiner or the August 2017 VA examiner when describing the effects of his hearing loss and tinnitus. Instead, he reported difficulty hearing and distraction from his tinnitus. Furthermore, aside from his one-time endorsement of popping and pressure at the August 2013 examination, the Veteran never reporting experiencing such symptoms either before or after the examination. Indeed, the Veteran did not endorse balance issues, popping, or pressure in his August 2012 claim for increased ratings, his November 2013 notice of disagreement, nor his August 2014 substantive appeal. Given the Veteran's failure to report popping or pressure at any time aside from the August 2013 examination, his sole reports of falling in a December 2017 submission and at the August 2013 examination, his frequent denial of experiencing falls and vertigo, and his self-interest in endorsing additional symptoms to support his claim, the Board finds his reports regarding these symptoms lack credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the veteran in weighing evidence); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (lack of corroborating contemporaneous evidence may be a factor in determining credibility); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; pecuniary interest may, however, affect the credibility of the evidence). Absent the non-credible reports regarding balance issues, popping, and pressure, the Veteran's sole hearing loss and tinnitus symptoms include difficulty hearing and distraction. The Board finds that such symptoms are contemplated by the applicable diagnostic codes. In this regard, the Rating Schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. Here, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. With regard to hearing loss, the Court has explicitly ruled that the rating criteria contemplates the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment. Moreover, tinnitus is ringing in the ears. It would defy commonsense and logic to conclude that the rating criteria does not contemplate distraction and nuisance therefrom. Consequently, the Board finds that the Veteran's bilateral hearing loss and tinnitus symptomatology is fully addressed by the rating criteria under which his disabilities are rated. There are no additional symptoms of his bilateral hearing loss or tinnitus that are not addressed by the rating schedule. Thus, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected bilateral hearing loss and tinnitus. As such, the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Even so, the Board notes that, throughout the appeal the Veteran frequently noted being retired and he never attributed such to his hearing loss or tinnitus. See, e.g., August 2017 VA examination report. Additionally, in a December 2014 submission related to another appeal, the Veteran reported being "...a competent and contributing citizen." Furthermore, there is no evidence, either or lay or medical, to suggest the Veteran has ever been hospitalized for his hearing loss or tinnitus, let alone that he has been frequently hospitalized for such disorders. Ultimately, in contrast to his assertions, the evidence does not establish that the disability picture associated with the Veteran's bilateral hearing loss and tinnitus is exceptional such that the available schedular evaluations are inadequate. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Thun, supra; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER A rating in excess of 10 percent for bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 is denied. A rating in excess of 10 percent for bilateral tinnitus on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs