Citation Nr: 20007101 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-26 409 DATE: January 28, 2020 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to July 24, 2019, and a disability rating in excess of 10 percent thereafter is denied. REMANDED Entitlement to service connection for migraines/headaches is remanded. Entitlement to service connection for a sleep disorder is remanded. FINDINGS OF FACT 1. Prior to July 24, 2019, the Veteran’s hearing loss was manifested by puretone thresholds, averaged over the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz), of no higher than 62.5 decibels (dB) for the right ear and no higher than 47.5 dB for the left ear; the Veteran’s speech recognition scores were no lower than 100 percent for each ear. 2. As of July 24, 2019, the Veteran’s hearing loss was manifested by puretone thresholds, averaged over the frequencies of 1000, 2000, 3000, and 4000 Hz, of no higher than 56.25 dB for the right ear and no higher than 53.75 dB for the left ear; the Veteran’s speech recognition scores were no lower than 72 percent for the right ear and no lower than 80 percent for the left ear. CONCLUSIONS OF LAW 1. Prior to July 24, 2019, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.85 Diagnostic Code 6100 (2018). 2. As of July 24, 2019, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.85 Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from June 1971 to March 1975 and from August 1978 to November 1994. In an October 2018 decision, the Board denied service connection for a sleep disorder and service connection for migraines/headaches. Following this decision, a Joint Motion for Partial Remand (JMR) was submitted to the Court of Appeals for Veterans Claims (Court/CAVC) in July 2019. Per this JMR, the Court vacated the Board’s decision as to service connection for a sleep disorder and service connection for migraines/headaches. As such, those matters have been returned to the Board for further adjudication and will be discussed in the remand portion of this decision. 1. Entitlement to a compensable rating for bilateral hearing loss prior to July 24, 2019, and a disability rating in excess of 10 percent thereafter The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also consider entitlement to staged ratings to compensate for times since the claim was filed when the disability may have been more severe than at other times during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In such case, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. In the case at hand, the Veteran has been service connected for bilateral hearing loss since 1994. He has submitted numerous claims for increase, which have been denied in a number of rating decisions that were not timely appealed within a year and, as such, became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The claim on appeal was filed on September 5, 2012. Therefore, the period under consideration begins one year prior on September 5, 2011. Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Ratings for hearing loss disabilities are based on organic impairment of hearing acuity, and an examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85, to evaluate the degree of disability from defective hearing, VA arrives at the proper designation by mechanical application of Table VI, which is used to determine a Roman numeral designation of I through XI for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. 38 C.F.R. § 4.85(b). Table VII (Diagnostic Code 6100) is then used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85(e). Table VIa is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone average threshold. 38 C.F.R. § 4.85(c). The Veteran has been assigned staged ratings for his bilateral hearing loss, which the Board will discuss separately. Prior to July 24, 2019 Having reviewed the evidence of record during this period of the appeal, the Board determines that the evidence does not support a compensable rating for bilateral hearing loss prior to July 24, 2019. During this period of the appeal, the Veteran underwent a VA examination in October 2012. The examination revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 25 55 85 85 62.5 LEFT 30 40 55 65 47.5 Speech recognition scores were 100 percent for both ears. The report indicates that puretone and CNC scores were appropriate for rating purposes. Mechanical application of Table VI to the October 2012 results yield Roman numeral II for the right ear and Roman numeral I for the left ear. Application of Table VII to Roman numeral II for the poorer ear (right ear) and Roman numeral I for the better ear (left ear) yields a 0 percent rating. There are no additional audiological reports during this period of the appeal. Thus, as the available and probative evidence does not yield a compensable rating, a compensable rating is not warranted during this period of the appeal. From July 24, 2019 Following his 2012 exam, the Veteran indicated that his hearing loss had worsened. Moreover, the Board determined in the October 2018 remand that the 2012 audio VA exam, six years old at that time, was stale. As such, the appeal was remanded to afford the Veteran a more contemporaneous VA audio exam. Following remand, the Veteran underwent a new VA examination in July 2019. The examination revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 35 50 70 70 56.25 LEFT 35 45 65 70 53.75 Speech recognition scores were 72 percent for the right ear and 80 percent for the left ear. The report indicates that puretone and CNC scores were appropriate for rating purposes. Mechanical application of Table VI to the October 2012 results yield Roman numeral V for the right ear and Roman numeral IV for the left ear. Application of Table VII to Roman numeral V for the poorer ear (right ear) and Roman numeral IV for the better ear (left ear) yields a 10 percent rating. There are no additional audiological reports during this period of the appeal. Thus, per the available and probative evidence, a 10 percent rating, but no higher, is warranted during this period of the appeal. Extraschedular Consideration The Board acknowledges the Veteran’s assertions that his hearing loss is worse in the right ear and has worsened to the extent that he has difficulty understanding people when having a conversation. See September 2012 Claim. As such, the Board has considered the potential application of extraschedular consideration under 38 C.F.R. § 3.321(b)(1) for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to “consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations.” Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the “combined effect” of multiple service-connected disabilities when the “collective impact” or “compounding negative effects” of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484 (2016). Accordingly, referral for consideration of 38 C.F.R. § 3.321(b)(1) on a collective basis is not warranted in this case. On an individual basis, the Board has considered whether referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b) is required for the Veteran’s bilateral hearing loss. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph 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). CAVC has clarified that 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 (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 Yancy v. McDonald, 27 Vet. App. 484 (2016); 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); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). 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 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 extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The schedular rating criteria for rating hearing loss provide for disability ratings based on audiometric evaluations, to include speech discrimination and pure tone testing. Here, all the Veteran’s hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria. The Veteran’s hearing loss disability has manifested in difficulty hearing conversations in a crowded room and needing to regularly ask others to repeat themselves. Specifically, the Veteran has indicated that he has difficulty understanding people when having a conversation. 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. 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. 25,202 (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. 17,295 (Apr. 12, 1994). The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran’s difficulties functioning in a social environment due to hearing loss. Accordingly, the Board finds that the Veteran’s reported hearing related difficulties are factors contemplated in the regulations and schedular rating criteria. See also Doucette, 28 Vet. App. 366 (holding that “the 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... an inability to hear or understand speech or to hear other sounds in various contexts... are contemplated by the schedular rating criteria”). As the threshold issue is not applicable, the criteria for referral for an assignment of an extraschedular rating of the disability are not met. 38 C.F.R. § 3.321(b)(1). As such, referral for extraschedular consideration is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for migraines/headaches is remanded. Remand is necessary to obtain an adequate VA opinion regarding the etiology of the Veteran’s headaches. The Board previously denied the appeal based on an August 2013 VA opinion indicating that the Veteran’s headaches are less likely than not related to his service. However, the August 2013 examiner misstated the original date of diagnosis of the Veteran’s migraines/headaches. Specifically, the July 2019 JMR notes that the August 2013 VA examiner indicated that the Veteran was diagnosed with headaches in 2009, but his post-service medical records show a June 1998 diagnosis. The JMR acknowledges the Board’s recognition of the correct date of diagnosis in its October 2018 decision but asserts that the Board failed to address the inconsistencies between the treatment records and the August 2013 VA exam. Thus, as the August 2013 VA opinion relied on inaccurate facts, the opinion is not probative. Accordingly, remand is necessary to obtain an adequate etiological opinion based on review of the record and consideration of accurate facts. 2. Entitlement to service connection for a sleep disorder is remanded. Remand is necessary to obtain an adequate VA opinion regarding the etiology of the Veteran’s sleep disorder. The July 2019 JMR asserts that the Board failed to provide adequate statements and bases to support its denial of service connection for a sleep disorder. Specifically, the parties assert in the JMR that since the Veteran’s only symptom prior to his 2009 sleep apnea diagnosis was snoring, the January 2016 examiner reasoned that this alone was not sufficient to establish an in-service incurrence of sleep apnea. The JMR notes that the Veteran then stated in his June 2016 VA Form 9 that his current sleep disorder started in 1978 “with snoring and interrupted sleep” worsening during service. Per the JMR, the parties assert that while the Board did discuss the Veteran and his wife’s lay statements regarding snoring symptoms, the Board did not address the June 2016 statement related to the symptom of interrupted sleep, which is separate from snoring. As such, the appeal was remanded in order for the Board to address whether this claimed symptom, which the parties note has not been considered by a medical examiner, triggers VA’s duty to assist to provide a new examination. Per the JMR, the Board finds that as the previous VA exam did not consider the Veteran’s overall disability picture, remand is necessary to afford the Veteran an adequate VA exam and obtain an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner(s) to assess the nature and etiology of his migraines and his sleep disorder. For each claim, the claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms, such as pain. Any opinion provided must be accompanied by a rationale. 2. Migraines/headaches: The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s migraines/headaches were caused by, incurred during or are otherwise related to his active service. As corrected per the Court’s remand, the examiner is advised to review the entire record and note the correct date of diagnosis of the Veteran’s migraines. Additionally, the examiner must address the Veteran’s in-service treatment for migraines as well as his lay statements, to include assertions that he has had intermittent headaches since 1991, with some nausea, photophobia, and dizziness. 3. Sleep disorder: The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep disorder was caused by, incurred during or is otherwise related to his active service. Importantly, the examiner must address any in-service notation of sleep symptoms as well as the Veteran and his wife’s lay statements, to include the Veteran’s assertions that he experienced both snoring and interrupted sleep during service. 4. After completing the above actions, readjudicate the claims on appeal. If the benefits sought remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.