Citation Nr: 1820366 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 17-03 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri. THE ISSUE Entitlement to a compensable initial evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel INTRODUCTION The Veteran had active military service from September 1955 to June 1957. These matters come before the Board of Veterans' Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. 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). The issue of entitlement to service connection for tinnitus has been raised by the record in his August 2015 Notice of Disagreement and January 2017 Form 9, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT The Veteran's bilateral hearing loss manifested no more than Level I hearing impairment in the right ear and Level IV hearing impairment in the left ear. CONCLUSION OF LAW The criteria for assignment of a compensable initial evaluation for bilateral hearing loss have not been met at any time during the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 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. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017) Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIA, and VII of VA's rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the pure tone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. 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 Bruce v. West, 11 Vet. App. 405, 409 (1998), quoting Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court of Appeals for Veterans Claims (Court) held that, in addition to providing objective test results, a VA audiological examination report must address the functional effects caused by a hearing disability because an extraschedular rating under 38 C.F.R. § 3.321(b) "does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted." The Court also noted that VA's policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations by requiring VA audiologists to provide such information. Martinak, 21 Vet. App. at 455. The Veteran was afforded a VA examination in June 2015. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: Right ear testing indicated 10 decibels at 1000 Hertz, 15 decibels at 2000 Hertz, 80 decibels at 3000 Hertz, and 85 decibels at 4000 Hertz, with a puretone threshold average of 48. The Maryland CNC speech recognition score was 96 percent. Left ear testing indicated 15 decibels at 1000 Hertz, 70 decibels at 2000 Hertz, 95 decibels at 3000 Hertz, and 105 decibels at 4000 Hertz, with a puretone threshold average of 71. The Maryland CNC speech recognition score was 82 percent. The examiner found sensorineural hearing loss bilaterally. The disability's effect on occupation and daily life was noted as impacting the Veterans ability to hear and understand conversations, but his primary issue was that he cannot hear the highest keys on the piano nor can he hear his turn signal in the car. The Veteran was afforded another VA examination in September 2016. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: Right ear testing indicated 20 decibels at 1000 Hertz, 20 decibels at 2000 Hertz, 75 decibels at 3000 Hertz, and 85 decibels at 4000 Hertz, with a puretone threshold average of 50. The Maryland CNC speech recognition score was 96 percent. Left ear testing indicated 20 decibels at 1000 Hertz, 70 decibels at 2000 Hertz, 90 decibels at 3000 Hertz, and 100 decibels at 4000 Hertz, with a puretone threshold average of 70. The Maryland CNC speech recognition score was 80 percent. The examiner found sensorineural hearing loss bilaterally. The disability's effect on occupation and daily life was again noted as impacting the Veterans ability to hear high frequency notes when playing instruments. The results of both examinations equate to a finding of an I in the right ear and a IV in the left. Applying these values to the rating criteria, the result is a non-compensable rating according to Table VII. Based on the evidence of record, a compensable rating for the Veteran's bilateral hearing loss is not warranted at any time during the period on appeal. The VA audiological findings are consistent with the criteria for a noncompensable rating under DC 6100. The Board emphasizes that schedular disability ratings for bilateral hearing loss are derived by a mechanical application of the Rating Schedule. Lendenmann, 3 Vet. App. at 349. As such, a higher initial evaluation for bilateral hearing loss, is denied. The Board has considered the lay statements that the Veteran's speech discrimination is worse than evaluated during the period. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's hearing loss has been provided by the medical personnel who have examined him during the appeal period and who have rendered pertinent opinions in conjunction with the evaluations. As opposed to the Veteran's personal test of covering one ear or the other, the medical findings (as provided in the examination report and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the subjective complaints of increased symptomatology. The Board has also considered whether referral for an extraschedular rating is warranted for bilateral hearing loss for any part of the rating period. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. 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. Thun v. Peake, 22 Vet. App. 111 (2008). 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 rating is, therefore, adequate, and no referral is required. See 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). In the second step of the inquiry, however, if the schedular rating 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 those provided by the regulation as "governing norms." 38 C.F.R. 3.321 (b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular referral analysis, the Board finds that in this case all the symptomatology and functional impairment caused by the bilateral hearing loss is contemplated by the schedular rating criteria; therefore, no referral for extraschedular consideration is required. As noted above a VA audiological examination report must fully describe the functional effects caused by a hearing disability in addition to dictating objective test results. Martinak, 21 Vet. App. at 455. The VA examination reports addressed the functional effects caused by the bilateral hearing loss disability, noting that the Veteran reported difficulty hearing high frequencies and musical notes, as well as the sound of the turn signal in his in automobile. The schedular rating criteria are adequate to rate all the hearing loss symptoms and described hearing impairments. The Veteran's complaints concern diminished auditory acuity and high frequency hearing loss. Diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria. In Rossy v. Shulkin, No. 16-0720, 2017 U.S. App. Vet. Claims LEXIS 1794 (Vet. App. Dec. 13, 2017), the Court, reaffirming Doucette, 28 Vet. App. 366, held that, absent other factors, difficulty understanding conversations, particularly in noisy or crowded circumstances, is squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria. The ability of the Veteran to hear 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, and certain high-pitched sounds. The ability of the Veteran to understand people during conversation or when talking is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations. Moreover, the testing is to be performed without the use of hearing aids. See 38 C.F.R. § 4.85 (a). The scores represent a rating made on the worst possible objective measure of performance. In other words, the Veteran does not have any symptoms from the hearing loss disability that are unusual or are different from those contemplated by the schedular rating criteria. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in both ears in this case, and as measured by both audiological 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 decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). The range of hearing loss chosen to qualify as a disability, and the method of calculating the hearing loss percentage, accounted for hearing loss at different frequencies and decided on the formula contained in the regulation. Any hearing loss experienced at frequencies other than those tested are not considered disabling for VA purposes. Accordingly, the Board finds that the Veteran's reported difficulties are factors contemplated in the regulations and schedular rating criteria. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on daily life. In the absence of exceptional factors associated with the bilateral 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). ORDER Entitlement to a compensable initial disability rating for bilateral hearing loss is denied. ____________________________________________ DELYVONNE M. WHITEHEAD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs