Citation Nr: 20007585 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 11-16 138 DATE: January 29, 2020 ORDER A disability rating for bilateral hearing loss in excess of 10 percent prior to June 3, 2017, and in excess of 30 percent thereafter on an extraschedular basis is denied. FINDING OF FACT The Veteran’s hearing and non-hearing effects of his service-connected bilateral hearing loss are fully compensated under the schedular rating criteria. CONCLUSION OF LAW The criteria for a disability rating for bilateral hearing loss in excess of 10 percent prior to June 3, 2017, and in excess of 30 percent thereafter are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1–4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to November 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2, 2010, September 29, 2010, April 2017, and September 2017 rating decisions. In an August 2010 decision, the Board granted service connection for bilateral hearing loss, and in the two September 2010 rating decisions noted above, it was evaluated as noncompensable. The Veteran appealed the evaluation, and in August 2014, the Board remanded the issue for further development. In an April 2017 decision, the Board granted an initial disability rating of 10 percent, but no higher, for service-connected bilateral hearing loss. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a May 2019 memorandum decision, the Court set aside the portion of the Board’s April 2017 decision that pertained to evaluation of the Veteran’s bilateral hearing loss and remanded the matter for further development and readjudication consistent with the Court’s decision. The Board notes that due to a typographical error in the briefing before the Court, the issue was framed as denial of a compensable disability rating for bilateral hearing loss, which was carried over to the Court’s decision. The Board also notes that in its April 2017 decision, the Board denied an initial evaluation in excess of 60 percent for service-connected coronary artery disease. As no argument was presented to the Court, the issue was deemed abandoned. See Pederson v. McDonald, 27 Vet. App. 276, 283 (2015). Also, in April 2017, the Board remanded the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), and in a September 2017 rating decision, the Veteran’s bilateral hearing loss was evaluated as 30 percent disabling effective June 3, 2017. Entitlement to a disability rating for bilateral hearing loss in excess of 10 percent prior to June 3, 2017, and in excess of 30 percent thereafter. The issue before the Court was whether the Board clearly erred in declining to refer the Veteran’s bilateral hearing loss for extraschedular consideration when it concluded that the non-hearing effects of his hearing loss were contemplated by the hearing loss rating criteria. The Veteran had contended that his hearing loss caused him vertigo, embarrassment, mental anguish, fear of unemployment or career failure, and stress, and he argued that these conditions were not contemplated by the hearing loss rating criteria, thereby warranting referral for extraschedular consideration under the framework set out in Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran further contended that, because the Board remanded the issue of entitlement to a TDIU due to an insufficiently developed record, the Board should have also remanded the issue of entitlement to an increased disability rating for the Veteran’s bilateral hearing loss. The Court determined that Morgan v. Wilkie, 31 Vet. App. 162 (2019), is dispositive here in that the Board failed to investigate whether the Veteran’s hearing loss-related impairments were ratable under alternative schedular means as required. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (“The Secretary is required to maximize benefits[.]”); see also Tatum v. Shinseki, 23 Vet. App. 152, 157 (2009); AB v. Brown, 6 Vet. App. 35, 38 (1993). Here, the Board views the Veteran’s additional claimed symptoms of bilateral hearing loss other than loss of hearing acuity, i.e., non-hearing effects, to fall into two categories: psychological and medical. As to the psychological manifestations, the Board finds that the Veteran has always been compensated for these symptoms. In a July 2007 rating decision, the Veteran was service-connected for posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling effective April 16, 2007. The Board notes that this is also the effective date of the Veteran’s service connection for bilateral hearing loss. In a June 2011 letter, the Veteran contended that the evaluation for his bilateral hearing loss did not take into consideration how his hearing loss affected him “emotionally when interacting with other professionals, clients, listening to lectures, and interacting with [his] family.” He stated that over the years he had suffered “mental anguish” regarding his hearing loss, fearing that it would keep him from getting and keeping employment and/or a professional degree. In August 2011, the Veteran was afforded a VA examination for mental disorders to address the contentions of stress related to coronary artery disease and hearing loss and of depression and/or anxiety secondary to hearing loss and coronary artery disease. The Veteran was diagnosed with chronic adjustment disorder with depressed mood and PTSD, which were noted as intertwined and inseparable. It was stated that stress was not a diagnosis under the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition). It was stated that the Veteran was exhibiting a diagnosis of chronic adjustment disorder with depressed mood, which was specifically related to his service-connected coronary artery disease. In an August 2011 rating decision, the Veteran’s evaluation of PTSD with adjustment disorder and depressed mood (also claimed as stress) was continued as 70 percent disabling. Hence, the Board finds that throughout the appeal period the Veteran has been compensated for his claimed psychological symptoms associated with his bilateral hearing loss. Additionally, in an April 2018 decision, the Board granted a TDIU based solely upon the Veteran’s service-connected acquired psychiatric disability, which in turn resulted in a grant of special monthly compensation under 38 U.S.C. § 1114(s) based upon total plus 60 percent disability. As to the medical manifestation of vertigo, the Board finds that the medical evidence of record fails to establish that the Veteran has a diagnosis of vertigo, and his single report of dizziness was attributed to his acquired psychiatric disorder, for which he is already compensated. Vertigo “is an illusory sense that either the environment or one’s own body is revolving; it may result from diseases of the internal ear or may be due to disturbances of the vestibular centers or pathways in the central nervous system. The term is sometimes erroneously used to mean any form of dizziness.” Vertigo, Dorland’s Illustrated Medical Dictionary (32d ed. 2012). Here, the report of a private July 2008 audiology examination shows that the Veteran denied dizziness. During his March 2011 hearing before a decision review officer, the Veteran did not report experiencing vertigo or dizziness. During an April 2011 VA audiology examination, the Veteran reported having “some vertigo.” The Veteran’s VA and private medical records reveal that the Veteran has consistently denied having dizziness. During a September 2014 VA audiology examination, it was indicated that the Veteran did not experience vertigo. VA medical records show that in December 2015, during a primary care telephone encounter, the Veteran denied dizziness. During a May 2017 VA examination for PTSD, the Veteran reported having “‘wound up in hospital four times’” for anxiety, which included symptoms such as dizziness. The Board notes that the Veteran, while entirely competent to report his symptoms, such as feeling dizzy, is not competent to proffer an opinion as to diagnosis, etiology, or whether his symptoms warrant a specific rating under the schedule for rating disabilities. See 38 C.F.R. § 3.159(a)(1)–(2) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that “lay persons are not competent to opine on medical etiology or render medical opinions.”). Such opinions require specific medical training and are beyond the competency of a lay person, and accordingly, the Board finds the medical findings more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). As the Veteran’s medical treatment records are silent for any complaints that resulted in medical evaluation for vertigo, the Board assumes that the notation in the April 2011 VA examination report refers to the Veteran reporting some dizziness. Dizziness can be a symptom of many disorders without any relationship to the ears or hearing, notwithstanding that it was recorded during a VA audiology examination in this case. Indeed, the only other report of the Veteran experiencing dizziness was in connection to symptoms of his acquired psychiatric disorder for which he is compensated. As there is no medical evidence to connect the Veteran’s occasional dizziness to his bilateral hearing loss, and there is medical evidence reasonably connecting it to his anxiety, the Board finds that the Veteran has been compensated for the symptom of dizziness. The Veteran’s argument before the Court was that the Board failed to compensate for his claimed non-hearing effects of his bilateral hearing loss and should have remanded the matter for development of the issue of a TDIU. The Veteran did not contend that the schedular disability rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100, did not adequately compensate for his symptoms of reduced hearing acuity. That being the case, the Board has not reanalyzed those established findings. (The Board reiterates that there was a typographical error in the briefing before the Court that asserted that the Board had denied a compensable disability rating, which was picked up in the Court’s decision. Indeed, in the April 2017 decision on appeal before the Court, the Board granted a disability rating of 10 percent, but no higher, throughout the appellate period.) Relying on Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court found that the Board erred when it prematurely considered entitlement to an extraschedular rating for the Veteran’s bilateral hearing loss and failed to account for the Veteran’s claimed non-hearing effects of his hearing loss within the schedular rating criteria. As the Board herein has fully accounted for compensation within the schedular rating criteria for all the Veteran’s claimed symptoms of bilateral hearing loss, hearing and non-hearing, there is no basis upon which the Board may consider entitlement to an extraschedular disability rating. Morgan, 31 Vet. App. at 168 (“We hold that VA’s duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered.”) The Veteran is in receipt of a TDIU and special monthly compensation. That being the case, a disability rating for bilateral hearing loss in excess of 10 percent prior to June 3, 2017, and in excess of 30 percent thereafter is not warranted. (Continued on next page.) Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.