Citation Nr: 21000803 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-35 603 DATE: January 6, 2021 ORDER Entitlement to a compensable disability rating for bilateral sensorineural hearing loss to include on an extraschedular basis from October 14, 2008 through November 20, 2019 is denied. Entitlement to a disability rating higher than 20 percent for bilateral sensorineural hearing loss to include on an extraschedular basis from November 20, 2019 is denied. FINDINGS OF FACT 1. From October 14, 2008 through November 20, 2019 the Veteran’s hearing loss disability has been manifested by hearing acuity no worse than level I in his right ear and level V in his left ear. 2. Since November 20, 2019 the Veteran’s hearing loss disability has been manifested by hearing acuity no worse than level V in his right ear and level V in his left ear. 3. The Veteran’s hearing loss does not present such an exceptional disability picture that it renders the rating schedule inadequate. CONCLUSIONS OF LAW 1. Prior to November 20, 2019 the criteria for an initial compensable disability rating, to include on an extraschedular basis, for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.85, 4.86, Diagnostic Code (DC) 6100. 2. Since November 20, 2019 the criteria for a disability rating higher than 20 percent for bilateral hearing loss, to include on an extraschedular basis, are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321(b)(1), 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1963 to August 1967 and from September 1973 to July 1975. In September 2019, he and his spouse testified at a travel Board hearing before the undersigned. However, his representative elected not to attend the hearing and the Veteran elected to testify in their absence. The record also reflects that in October 2019, the Veteran submitted a VA Form 21-22a in favor of another individual to represent him as a “one-time” representative under 14.630. However, that individual failed to complete the appropriate section of the form, thus the October 2019 VA Form 21-22 did not validly effectuate a change in representation. The Veteran consequently continues to be represented by the Agent who was his representative at the time of the Board hearing. In February 2020, the Board remanded the appeal for additional development. Increased Ratings The Veteran is seeking increased disability ratings for his bilateral hearing loss. Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon 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 rating 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. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s bilateral hearing loss is currently rated as 20 percent disabling under DC 6100, effective November 20, 2019 and prior to that date was rated as noncompensable. He contends that his hearing loss impacts his ordinary conditions of daily life, including his ability to work, due to his frequent difficulty hearing and understanding speech. The Veteran and his representative have also stated that his hearing loss negatively impacts his life in ways that cannot be accounted for by a purely mechanical application of the rating schedule. Under DC 6100 the criteria for evaluating hearing impairment uses puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Audiometric results are matched on Table VI to find the numeric designation. Then, the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. 38 C.F.R. § 4.85. The provisions of section 4.86 address exceptional patterns of hearing loss which are identified when each of the puretone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. prior to November 20, 2019 Applying the above regulations here, the Board finds that the criteria for a compensable disability rating are not met prior to November 20, 2019. A November 2008 VA audiological evaluation shows puretone thresholds in decibels for the Veteran’s right ear at 1000, 2000, 3000, and 4000 Hz were: 45, 50, 55, and 55, for an average of 51 and for his left ear, at those same frequencies, were: 40, 50, 50, and 60, for an average of 50. Speech discrimination scores were 100 percent for each ear. Using Table VI, these examination results revealed level I impairment in the right ear and level I impairment in the left ear. Combining these levels according to Table VII results in a noncompensable (0%) evaluation. 38 C.F.R. § 4.85. These audiological results also do not satisfy the criteria for a compensable rating due to an exceptional hearing loss pattern. 38 C.F.R. § 4.86. An April 2010 VA audiological evaluation shows puretone thresholds in decibels for the Veteran’s right ear at 1000, 2000, 3000, and 4000 Hz were: 40, 50, 50, and 50, for an average of 48 and for his left ear, at those same frequencies, were: 45, 50, 55, and 70, for an average of 55. Speech discrimination scores were 100 percent for each ear. Using Table VI, these examination results revealed level I impairment in the right ear and level I impairment in the left ear. Combining these levels according to Table VII again results in a noncompensable (0%) evaluation. 38 C.F.R. § 4.85. These audiological results also do not satisfy the criteria for a compensable rating due to an exceptional hearing loss pattern. 38 C.F.R. § 4.86. When the Veteran was examined in November 2015, puretone thresholds in decibels for his right ear at 1000, 2000, 3000, and 4000 Hz were: 40, 50, 50, and 45, for an average of 46, and for his left ear, at those same frequencies, were: 55, 65, 65, and 80, for an average of 66. Speech discrimination scores were 100 percent for each ear. Using Table VI, these examination results revealed level I impairment in the right ear and level II impairment in the left ear. Combining these levels according to Table VII results in a noncompensable (0%) evaluation. See 38 C.F.R. § 4.85. However, because the puretone thresholds recorded for the left ear reflect hearing loss of 55 decibels or higher at 1000, 2000, 3000, and 4000 Hz; an exceptional hearing impairment under 38 C.F.R. § 4.86(a) is demonstrated. So, using Table VIA, these findings result in level V hearing acuity in the left ear. That said, combining level II and level V according to Table VII still results in a noncompensable (0%) evaluation. Id. In support of his claim, the Veteran submitted private audiological evaluations. See Audiological Evaluations from The Hearing Center, dated August 6, 2015 and April 12, 2018. Unfortunately, neither report conforms to VA’s requirements for evaluating hearing impairment in that the numerical values for pure tone results at the frequency for 3000 Hz were not reported. 38 C.F.R. § 4.85(a). Therefore, the Board cannot find the Veteran is entitled to a compensable disability rating based on these reports. That said, the available data in the private reports, while not sufficient for application of the schedular rating tables, does suggests results that are consistent with the average hearing thresholds present in the Veteran’s most recent VA evaluation in 2015, the basis for the continued 0 percent disability rating. Accordingly, prior to November 20, 2019, the impairment due to the Veteran’s bilateral hearing loss is most consistent with a noncompensable schedular evaluation. since November 20, 2019 The current 20 percent disability rating is based on findings from a November 20, 2019 VA examination which shows pure tone thresholds in decibels for the right ear at 1000, 2000, 3000, and 4000 Hz were: 60, 65, 65, and 65, for an average of 64, and for his left ear, at those same frequencies, were: 60, 60, 70, and 75, for an average of 66. Speech discrimination scores were 96 percent in his right ear and 100 percent in his left ear. Using Table VI, these examination results revealed level II hearing in the right ear and level II hearing in the left ear. Combining these levels according to Table VII results in a noncompensable (0%) evaluation. See 38 C.F.R. § 4.85. However, because the puretone thresholds recorded reflect hearing loss of 55 decibels or higher at 1000, 2000, 3000, and 4000 Hz; an exceptional hearing impairment under 38 C.F.R. § 4.86(a) is demonstrated. When using Table VIA, these findings result in level V hearing acuity in each ear. Combining these levels according to Table VII results in a 20 percent evaluation. Id. Accordingly, the Board finds that the Veteran’s impairment due to hearing loss for the period since November 20, 2019 is most consistent with a 20 percent evaluation. Consideration is given to the functional effects of the Veteran’s bilateral hearing loss. Despite any general quality of life problems, he may experience, hearing loss disability is evaluated on the objective findings demonstrated during audiological examination. Just because the Veteran’s hearing acuity may be less than optimal does not, by itself, establish entitlement to a higher disability rating. In fact, it is clear from the Rating Schedule that higher ratings can be awarded only when loss of hearing has reached a specified measurable level. That level of disability has not been demonstrated in the present case. The assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, supra. Extraschedular Consideration The Board has also considered whether the Veteran is entitled to increased ratings for his bilateral hearing loss disability on an extraschedular basis. An extraschedular disability rating is warranted 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); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical). The Court has set out a sequential three-step analysis, based on the language of 38 C.F.R. § 3.321 (b)(1), to determine whether to refer a case for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Step one is to determine whether the schedular rating adequately contemplates a claimant’s disability picture. If the criteria reasonably describe the disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral to the Under Secretary for Benefits or the Director, Compensation Service for consideration of an extraschedular rating is required. If, however, the schedular criteria do not contemplate the claimant’s level of disability and symptomatology and are therefore found to be inadequate, step two is to determine whether the claimant’s disability picture is exceptional, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular criteria. If the claimant’s disability picture meets this second step, then the third and last step is to remand the claim to the AOJ for referral to the Director, Compensation Service (Director). The Board did so in this case in February 2020. In August 2020, the AOJ referred the matter to the Director for extraschedular evaluation. The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Kuppamala v. McDonald, 27 Vet. App. 443, 458 (2015) (the Board reviews the entirety of the Director’s decision de novo and is thus authorized to assign an extraschedular rating when appropriate). In an October 2020 Advisory Opinion, the Director denied entitlement to an extraschedular rating for bilateral hearing loss under provision 38 C.F.R. § 3.321(b)(1) on the basis that the evidence of record showed no impairment in/of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization. Citing to Doucette v. Shulkin, the Director noted that the rating criteria for hearing loss under 38 C.F.R.4.85 and 4.86 contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment and are precisely the effects that audiometric testing is designed to measure. The Court held that hearing loss that results in inability to hear or understand speech or sounds in various contexts are the effects contemplated by the schedular rating criteria. In the current appeal, the record contains audiological evaluations dated in 2008, 2010, 2015, and 2019, which have already been discussed in full above and will not be repeated here. In general, the findings from these VA audiological examinations show entitlement to only a noncompensable schedular disability rating prior to November 2019 and 20 percent thereafter. Throughout the appeal period, the Veteran has submitted personal and lay statements describing the effects of his hearing loss disability. In his June 2017 substantive appeal, he reported having a great deal of difficulty following and participating in conversations due to his hearing loss. To compensate, the Veteran stated he would nod his head as if he understood the conversation when in fact, he had not been able to hear it clearly. He also stated that using the telephone while wearing his hearing aids caused difficulty at his place of employment because the feedback in the receiver was almost intolerable. Statements from work colleagues reflect the need for the Veteran to repeatedly ask people to repeat themselves during conversations. See lay statement from C. Haley, dated February 17, 2018. One colleague stated that he has observed the hearing aid feedback first-hand when the Veteran had to use the telephone for his job. This results in the Veteran either having to put the phone on speaker or remove his hearing aids and increase the volume on the handset in order to hear the person on the other end. See lay statement from W. Moore, dated February 19, 2018. In a May 2018 statement, the Veteran’s spouse stated that even with his hearing aids in she had to constantly repeat things because he has difficulty hearing entire conversations. She also expressed safety concerns due to the Veteran’s hearing loss disability. She stated that she has a medical condition that sometimes necessitates her getting up in the night and going into the living room to relieve the pain. She was concerned because the Veteran would not be able to hear her if she were to call out for help as he does not hear noises from inside, or outside, the house when his hearing aids are not in. During the September 2019 travel board hearing, the Veteran testified that at night, when his hearing aids are out, he could not hear conversations, thunder, or any other sounds in or outside the home. He expressed concern about not being able to hear emergency vehicles in the night without his hearing aids. He reported having to look at co-workers to see what they are saying otherwise itis very difficult for him to participate in the conversation, or sometimes to even know whether they are talking to him. Additionally, the Veteran stated that assisting customers on the phone was very difficult due to the feedback from the hearing aids. He also stated, and his wife confirmed, that his hearing loss causes him to get frustrated, and that in turn creates friction between him and his wife. Although, the above evidence shows that his service-connected hearing loss has had an adverse impact on his employability, this alone is not sufficient to warrant the assignment of an extra-schedular rating, which is premised on an exceptional or unusual disability picture. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran’s hearing loss in that the ratings are intended to compensate for exactly the symptoms he has reported, difficulty hearing sounds and understanding speech including difficulty using the telephone. The Veteran does not argue, and the evidence does not reflect, that he has experienced symptoms outside of those contemplated by the rating schedule under DC 6100. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). There are no symptoms attributable to his service-connected hearing loss that are left uncompensated or unaccounted for by the assignment of schedular rating. The Board is sympathetic to the difficulties that the Veteran’s hearing loss may cause him in his employment. The standard for demonstrating “marked” impairment in employment is a relatively high bar to meet, and all indication is that the Veteran is not substantially precluded from carrying out occupational duties and was still employed as of January 2020. There was no indication from any VA examiner that the hearing loss significantly affects vocational potential or limits participation in most work activities. The Veteran has not indicated or suggested that his hearing loss has caused him to miss any time from work. Neither is there any indication of demotion or special accommodation having to be made to compensate for his hearing loss. Nor has there been substantial outside medical treatment or other compelling factors which brings this case within the realm of exceptional disability. For the foregoing reasons, the preponderance of the evidence is against higher disability ratings, to include on an extraschedular basis, for bilateral hearing loss and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Bryant 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.