Citation Nr: 21000564 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-57 736 DATE: January 5, 2021 ORDER Entitlement to a disability evaluation in excess of 10 percent for service-connected bilateral hearing loss, including on an extraschedular basis, is denied. REMANDED Entitlement to service connection for a vision condition, including as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. At worst, applying Table VII, the Veteran had Level III hearing acuity in the right ear and Level IV hearing acuity in the left ear. 2. The Veteran’s bilateral hearing loss does not present such an exceptional disability picture that the available schedular evaluations for his service-connected bilateral hearing loss are inadequate. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 10 percent for service-connected bilateral hearing loss, including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to August 1972. Evidence of record also indicates that the Veteran has Reserve service. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Commonwealth of Puerto Rico. The Board previously remanded this matter in August 2018. 1. Bilateral Hearing Loss Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civilian occupations resulting from such diseases and injuries, and their residual conditions. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100. In evaluating hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests using the Maryland CNC word list, in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. See id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. The vertical columns in Table VI represent nine categories of percentage of discrimination based on the controlled speech discrimination test. Id. The horizontal rows in Table VI represent nine categories of decibel loss based on the puretone audiometry test. See id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical column corresponding to the percentage of discrimination and the horizontal row corresponding to the puretone decibel loss. Id. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation of the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of “V” and the poorer ear has a numeric designation Level of “VII,” the percentage evaluation is 30 percent. See id. There are alternative criteria for certain exceptional patterns of hearing loss. Specifically, if the puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation will be based either on Table VI or Table VIA in 38 C.F.R. § 4.85, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Id. 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 VIA under 38 C.F.R. § 4.85, whichever results in the higher Roman numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). As a preliminary matter, the Board notes that the Veteran’s bilateral hearing loss does not present an exceptional pattern of hearing loss pursuant to 38 C.F.R. § 4.86 at any time during the period under consideration. When the Veteran was examined in October 2014 in a VA Audiology Consult, he exhibited puretone thresholds, in decibels, as follows: Hertz 1000 2000 3000 4000 Right 25 50 70 85 Left 30 60 85 100 The examination report reflects a puretone threshold average of 58 decibels for the right ear and 69 decibels for the left ear. Speech recognition scores, though not indicated whether the Maryland CNC Test was used, measured 84 percent in the right ear and 80 percent in the left ear. Based on Table VI, the Veteran had Level III hearing acuity in the right ear and Level IV hearing acuity in the left ear. Applying Table VII, Level III hearing acuity in the right ear and Level IV hearing acuity in the left ear, the Veteran’s hearing loss equated to 10 percent. The Veteran underwent a VA examination in September 2015 to evaluate the current severity of his disability, during which he exhibited puretone thresholds, in decibels, as follows: Hertz 1000 2000 3000 4000 Right 25 50 70 80 Left 25 60 85 100 The examination reflects a puretone threshold average of 56 decibels for the right ear and 68 decibels for the left ear. Speech discrimination scores pursuant to the Maryland CNC Test measured 88 percent in the right ear and 80 percent in the left ear. Based on Table VI, the Veteran had Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear. Applying Table VII, Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear, the Veteran’s hearing loss equated to 0 percent. Most recently, the Veteran was examined for his bilateral hearing loss in May 2019, at which time he exhibited puretone thresholds, in decibels, as follows: Hertz 1000 2000 3000 4000 Right 30 50 75 80 Left 30 65 85 100 The examination reflects a puretone threshold average of 59 decibels for the right ear and 70 decibels for the left ear. Speech discrimination scores pursuant to the Maryland CNC Test measured as 84 percent in the right ear and 80 percent in the left ear. Based on Table VI, the Veteran has Level III hearing acuity in the right ear and Level IV hearing acuity in the left ear. Applying Table VII, Level III hearing acuity in the right ear, and Level IV hearing acuity in the left ear, the Veteran’s hearing loss equates to 10 percent. As detailed, the Veteran’s service-connected bilateral hearing loss has not warranted a rating higher than 10 percent at any point during the appeal period. As the preponderance of the evidence is against the claim, it must be denied. In reaching this determination, the Board has considered the Veteran’s VA treatment records reflecting numerous treatments for hearing aids, as well as the Veteran’s assertions, as noted by his representative in the December 2020 Appellate Brief. In the Appellate Brief, the Veteran, through his representative, asserts that his service-connected tinnitus and levels of background noise affect his hearing acuity. However, the challenges associated with the Veteran’s hearing loss, as described by him to his providers and in the December 2020 Appellate Brief, are contemplated by the rating criteria, which are designed to account for the average impairment resulting from service-connected disabilities, including the impact on employment and occupational functioning. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. To the extent that the Veteran challenges the results of the VA examinations because he was tested in “a soundproof booth,” the Board highlights that the VA examiners also considered the Veteran’s own description of his hearing difficulties and impact of his hearing loss during his everyday life in assessing the severity of his disability. The fact that his hearing loss has not met the criteria for a rating greater than 10 percent based on the results of several examinations weights against a finding that he has additional impairment based solely on his difficulty hearing and use of hearing aids. Therefore, the Veteran’s functional impairment does not establish entitlement to a higher rating absent audiometric and speech discrimination scores that satisfy or more nearly approximate the schedular criteria for a rating greater than 10 percent. See 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 349. Because the preponderance of the evidence weighs against a higher rating, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In the December 2020 Appellate Brief, the Veteran, through his representative, asserted that this 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 applicable regular schedular standards. See December 2020 Appellate Brief. Thus, the Board interprets his statement as a request for extraschedular consideration. The determination of whether the claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity of symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. See id. If the rating criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then the third step requires the case to be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Services to determine whether the disability requires the assignment of an extraschedular rating. Id. As noted above, the Veteran’s objective examinations show that he meets the criteria for the schedular 10 percent disability rating under DC 6100. The Veteran has not presented competent, credible evidence that his hearing loss symptomatology is not considered by the schedular criteria. Therefore, the Veteran’s disability does not present such an exceptional picture that the available schedular evaluation is inadequate. Furthermore, there is no evidence of record that the Veteran has been frequently hospitalized for his hearing loss. Even though the Veteran has reported difficulty understanding conversations, which could impact his occupational functioning, there is no evidence of record that the Veteran’s bilateral hearing loss causes marked interference with his employment. Accordingly, the first and second Thun elements have not been satisfied. Referral to the Under Secretary for Benefits or Director of Compensation and Pension Services is thus not warranted. In sum, the Board finds that a preponderance of the medical evidence establishes that the Veteran’s hearing loss has not been so severe as to warrant a disability evaluation in excess of 10 percent and the Veteran’s condition does not present such an exceptional disability picture that referral for extraschedular consideration is warranted. Thus, entitlement to a disability evaluation in excess of 10 percent for the Veteran’s service-connected bilateral hearing loss, to include on an extraschedular basis, is denied. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine, however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Vision Condition The Board sincerely regrets delaying the Veteran’s appeal; however, further evidentiary development is necessary before his claim for service connection for a vision condition can be adjudicated on the merits. Previously, because the Veteran claimed that his vision condition was secondary to his service-connected disabilities, the Board requested opinions as to whether his service-connected disabilities either caused or aggravated the Veteran’s current vision disorders. See August 2018 Board Decision. To date, the Board has received opinions as to causation, but not as to aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136 (2012) (medical opinions addressing secondary service connection must discuss both causation and aggravation). A remand confers on claimants, as a matter of law, the right to compliance with the remand orders and on the VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Therefore, the Board requests that addendum opinions be obtained as to the etiology of the Veteran’s visual disorders. Additionally, the Board notes that the Veteran’s DD Form 214 reflects that he was discharged from active duty service to Reserve service. See August 1972 DD Form 214. Furthermore, the Veteran’s service treatment records indicate evaluations both before and after the period of active duty service listed on his DD Form 214. Although there are service treatment records and service personnel records associated with the file revealing the Veteran’s education, performance, assignments, points, and awards, the precise dates of all periods of active duty service, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are not available. On remand, the Agency of Original Jurisdiction (AOJ) should confirm the Veteran’s periods of active duty service, ACDUTRA, and INACDUTRA. Moreover, the Board notes that the Veteran has received treatment throughout his active service for visual problems and that he was diagnosed with conditions such as conjunctivitis, extrophia, and diplopia. See August 1953 Service Treatment Record; October 1967 Service Treatment Record; January 1969 Service Treatment Records. Accordingly, the Board finds that there is a question as to whether the Veteran’s current visual disabilities are directly related to his military service. Consequently, an addendum opinion as to direct service connection must be obtained on remand. The matters are REMANDED for the following action: 1. The AOJ should determine the specific dates of when the Veteran served on active duty service, ACDUTRA, and/or INACDUTRA. Records providing retirement points will NOT represent compliance with this instruction. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. All medical treatment records associated with the Veteran’s Reserve service should also be obtained. 2. After completing the foregoing development, forward the claims file to an appropriate clinician who has not previously provided an opinion in this matter to ascertain the nature and etiology of any and all visual disabilities attributable to the Veteran. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. The clinician should identify any and all visual disabilities attributable to the Veteran throughout the appellate period. For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s vision condition manifested during, or is the result of, his active duty service, and/or ACDUTRA. For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s vision condition is either (i) caused or (ii) aggravated by his service-connected disabilities. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the examiner should attempt to identify the baseline level of disabilities prior to aggravation. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (a) The Veteran’s service treatment records; (b) The Veteran’s post-service VA medical records; and (c) The Veteran’s competent lay statements of record regarding the onset and continuity of his visual symptomatology. If the clinician determines that the Veteran’s visual condition(s) is/are less likely than not due to active duty service and/or ACDUTRA, and/or that the Veteran’s visual condition(s) is/are less likely than not either caused or aggravated by his service-connected disabilities, the clinician should discuss what other factor(s) caused the disorder(s). (Continued on the next page) A complete rationale must be provided for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.