Citation Nr: 1806898 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-07 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Morales, Associate Counsel INTRODUCTION The Veteran had active service in the United States Airforce from March 1968 to June 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in August 2017. A transcript is of record. FINDING OF FACT The Veteran had no worse than Level II hearing loss in the right ear, and no worse than Level II or Level IV hearing loss in the left ear, with no exceptional patterns of hearing loss in either ear. CONCLUSION OF LAW Throughout the rating period on appeal, the criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.10, 4.85, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but it is not required to provide assistance to a claimant if there is not a reasonable possibility that assistance would aid in substantiating the claim. VA must notify the claimant of any information, and any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran and his representative have not alleged any deficiencies in VA's duties to notify and assist. It will not be discussed further. As such, the Board will proceed with consideration of the Veteran's appeal. The Veteran contends that his hearing loss is compensable because of the problems that he has with his plastic tympanostomy tubes surgically implanted in his ears, which allow flow through his ears, alleviate pressure, and help his hearing. 8/22/2017, Hearing Transcript, at p. 3; 8/22/2017, Medical Treatment Record - Non-Government Facility, at p. 50, 52-53. Legal Criteria and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage is based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of puretone audiometry tests. See 38 C.F.R. §§ 4.85-4.87. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a puretone audiometry test. 38 C.F.R. §4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The rating criteria for hearing loss provide tables for combining the level of loss in the ears. Table VI is used to determine a Roman numeral designation for each ear based on a combination of the speech discrimination percentage and the average puretone threshold, or the sum of thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. Table VIA designates a Roman numeral based on the average puretone thresholds only. Table VI is typically used, but Table VIA may be used for exceptional patterns of hearing loss. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for impairment in both ears. 38 C.F.R. §§ 4.85, 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). The Board first notes that the Veteran does not have an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.86. All applicable tests include valid pure tone and speech discrimination scores. As such, Table VI applies. See 38 C.F.R. §§ 4.85, 4.86. The Veteran has been assigned a noncompensable rating throughout the period on appeal. The Board has reviewed the evidence, and finds that the Veteran's bilateral hearing loss disability does not warrant a compensable rating, as discussed below. The Veteran underwent a VA examination in September 2012, and his results were as follows: Right Ear A B C D E F G 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 35 40 50 90 85 65 70 Left Ear A B C D E F G 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 30 40 45 80 75 60 45 The pure tone average in the right ear was 66 decibels and 60 decibels in the left ear. Speech recognition scores were 94 percent in both ears. 9/10/2012, VA Examination, at p. 3. Alternatively, there is an indication that the speech recognition score was 80 percent in the left ear. 9/10/2012, VA Examination, at p. 6; 9/06/2012, VA Examination at p. 9. Such findings translate to Level II in the right ear and Level II in the left ear, or alternatively a Level IV in the left ear using the 80 percent score. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a 0 (zero) percent disability rating, even when accounting for a potential Level IV rating in the left ear. In March 2017, the Veteran underwent another VA examination, and his results were as follows: Right Ear A B C D E F G 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 40 40 45 70 75 70 70 Left Ear A B C D E F G 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 40 40 45 55 55 50 55 The pure tone average in the right ear was 58 decibels and 49 decibels in the left ear. Speech recognition scores were 94 percent in both ears. 3/1/2017, C&P Examination, at p. 1-2. Such findings translate to Level II in the right ear and Level I in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a 0 (zero) percent disability rating. The Board acknowledges the Veteran's statements and testimony regarding his hearing loss. Specifically, he asserts that he is unable to hear high-frequency sounds, he needs the television at a loud volume, and he asks people to repeat themselves more often. 9/10/2012, VA Examination, at p. 6. Additionally, he has difficulty hearing and understanding speech in areas with background noise. 3/1/2017, C&P Examination, at p. 4. He is competent to report these symptoms, and the Board also finds him credible as the statements on these points are consistent. See Jandreau, 492 F.3d at 1377. Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. As such, the medical evidence and test results are more probative and outweigh the lay subjective reports of a more severe degree of disability because they directly address the rating criteria for the Veteran's hearing loss. The rating schedule has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The evidence shows generally the same symptoms throughout the period on appeal such that staged ratings are not appropriate. See Fenderson, 12 Vet. App. 126-27. Accordingly, this claim must be denied. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against a compensable rating. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Referral for Extraschedular Consideration The Board has also considered whether an extraschedular rating is warranted for the service-connected bilateral hearing loss during the relevant period on appeal. To accord justice, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Service, is authorized to approve an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits of the Director, Compensation Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Id. Additionally, the United States Court of Appeals for Veterans Claims (Court) recently discussed extraschedular consideration in the context of bilateral hearing loss: [T]he Court holds that the [schedular] rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure. Thus, when 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. However, as the rating criteria do not otherwise discuss, let alone account for, other functional effects, such as dizziness, vertigo, ear pain, etc., the Court cannot conclude that the rating schedule, on its face, contemplates effects other than difficulty hearing or understanding speech. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Court further noted that "a hearing loss claimant could provide evidence of numerous symptoms, including-for purposes of example only - ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects." Id. at 371. The Board notes that the Veteran's VA examinations reflect reports of difficulty understanding individuals, turning the television volume louder, and difficulty distinguishing sounds when there is background noise. However, his hearing loss symptoms are squarely contemplated in 38 C.F.R. § 4.85. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. The ability of the Veteran to hear sounds and 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, sirens, and certain high-pitched sounds. The ability of the Veteran to understand people and having to ask others to repeat themselves on a regular basis is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, which were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing. See Doucette, 28 Vet. App. at 371. While acknowledging the functional effects and limitations association with his hearing loss, in consideration of Doucette, the Board finds that the schedular rating contemplates the effects of the Veteran's service-connected bilateral hearing loss as they are related to functional effects of decreased hearing and difficulty understanding speech in an everyday environment. Furthermore, the Veteran's other ear related problems - congestion, pressure, and autophony- are related to his Eustachian tube disorder, which is currently not service-connected. Although the Veteran has stated that he is unable to wear hearing aids in conjunction with the tympanostomy tubes, when the tubes function properly, the Veteran is able to hear. 8/22/2017, Hearing Transcript, at p. 3, 10. The medical evidence shows that he reported that his hearing and ear pressure improved, and his autophony resolved, after an ear procedure was performed in May 2017. See 8/22/2017, Medical Treatment Records, at p. 50. Comparing the Veteran's disability level and symptomatology of his service-connected bilateral hearing loss to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and a noncompensable rating is adequate. Absent any exceptional factors associated with 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. In light of the above, the Board finds that the schedular rating criteria are adequate to rate the Veteran's service-connected bilateral hearing loss, and referral for consideration of an extraschedular evaluation is not warranted. ORDER A compensable rating for bilateral hearing loss is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs