Citation Nr: 20024167 Decision Date: 04/08/20 Archive Date: 04/08/20 DOCKET NO. 15-40 450 DATE: April 8, 2020 ORDER Entitlement to an initial compensable rating for bilateral hearing loss, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran demonstrated, at worst, level II hearing acuity in his right ear throughout the appeal period. 2. The Veteran demonstrated, at worst, level VII hearing acuity in his left ear throughout the appeal period. 3. The Veteran’s bilateral hearing loss does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss, to include on an extraschedular basis, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 3.321(b)(1), Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from May 1964 to May 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Indianapolis, Indiana Regional Office (RO). In August 2018, the Board remanded this claim for further development. Entitlement to an initial compensable rating for bilateral hearing loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of disease and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, 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. When reasonable doubt arises as to the degree of disability, such doubt is resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In considering the severity of the disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase of the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of a disability from defective hearing, the rating schedule establishes eleven auditory levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. To evaluate an individual’s level of disability, Table VI is used to assign a roman numeral designation 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 is used to determine the percentage evaluation by combining the roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). If impaired hearing is service-connected in only one ear, the nonservice-connected ear will be assigned a roman number designation of level I. 38 C.F.R. § 4.85. The rating criteria for alternative ratings when an exceptional pattern of hearing is met. If the puretone threshold at each of the specified frequencies of 1000, 2000, 3000 and 4000 Hertz is 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. 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 roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher roman numeral. 38 C.F.R. § 4.86(b). In a February 2014 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 35 45 70 LEFT 35 45 70 80 The puretone threshold average was 45 in the right ear and 58 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 80 percent in the left ear. The examiner found that the speech discrimination findings were appropriate to rate the Veteran. In a July 2018 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 35 60 70 LEFT 50 70 80 85 The puretone threshold average was 51 in the right ear and 71 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 76 percent in the left ear. The examiner found that the speech discrimination findings were appropriate to rate the Veteran. In an October 2019 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 30 55 60 LEFT 45 65 70 80 The puretone threshold average was 46.25 in the right ear and 65 in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 56 percent in the left ear. Again, the examiner found that the speech discrimination findings were appropriate to rate the Veteran. In a January 2019 treatment note, the examiner noted that the patient is not a candidate for hearing aids due to the intolerance to loud sounds. The Board finds that an increased evaluation is not warranted. Using Table VI, the findings from the most recent VA Examination demonstrate Level I hearing impairment in the right ear and Level VII hearing impairment in the left ear. See October 2019 VA Examination. The findings from the July 2018 VA audiogram demonstrate Level II hearing impairment in the right ear and Level IV hearing impairment in the left ear. Finally, the findings from the February 2014 examination demonstrate a Level II hearing impairment in the right ear and a Level IV hearing impairment in the left ear. Utilizing Table VII, each of these findings equate to a 0 percent evaluation. Accordingly, an increased evaluation is not warranted. The Board notes that the VA audiological examination reports noted above each describe the effects of the Veteran’s hearing impairments on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In the July 2018 VA examination, the Veteran noted that he experiences aural pain around noise, such as: driving the car, operating a lawn mower, or noisy crowds. The Veteran noted that he has to wear hearing protection in these environments because the sounds is uncomfortable. In the October 2019 VA examination, the Veteran stated that his hearing loss causes him to turn up the volume on his electronic devices and that he has trouble understanding speech in noisy places. Furthermore, the Veteran says that he uses closed captions while watching television and carries earplugs in order to tolerate noisy environments. See also June 2018 VA Examination. The Board finds the Veteran’s lay statements competent and credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by showing of an interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The evaluation of hearing loss, however, is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Therefore, entitlement to an initial compensable rating for bilateral hearing loss is not warranted on a schedular basis. As the evidence preponderates against the claim, there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The issue of consideration of an extraschedular rating was raised by the Veteran several times throughout the record describing aural pain surrounding loud noises. See October 2015 appeal on a VA Form 9, July 2018 VA treatment record, and January 2019 VA treatment record. Pain is not specifically addressed under the rating criteria for hearing loss, and therefore the Board will consider whether referral to the Director of the Compensation Service for an extraschedular rating analysis is warranted. An extraschedular disability rating is applicable based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub. nom. Thun v. Shinseki, 573 F.3d 1366 (Fed Cir. 2009), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’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 extraschedular rating. In this case, regardless of whether step one of Thun had been satisfied, extraschedular referral is not warranted because the Board also finds that Thun step two is not satisfied. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc) (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied). The Veteran’s hearing loss does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization. 38 C.F.R. § 3.321 (b)(1). The Veteran has not been hospitalized for this condition, and there is no evidence of any marked interference with employment such as excessive absences, reduced working hours, or duty restrictions. Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B.White, 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.