Citation Nr: 21000810 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 11-02 484 DATE: January 6, 2021 ORDER Entitlement to an initial evaluation in excess of zero percent for bilateral hearing loss is denied. FINDINGS OF FACT The Veteran’s hearing acuity has been, at worst, Level II in the right ear and Level IV in the left ear. CONCLUSIONS OF LAW The criteria for an evaluation in excess of zero percent for bilateral hearing loss have not been met.38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from June 1978 to June 2000. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veteran Affairs (VA) regional office in Houston, Texas. In December 2014, the Veteran testified at a videoconference hearing before the undersigned Veteran’s Law Judge. In February 2018, the Board denied an initial compensable rating for bilateral hearing loss. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 Memorandum decision, the Court vacated the Board’s February 2018 decision and remanded the matter for further adjudication. The issue was again remanded in February 2020 for further development. 1. Entitlement to an initial evaluation in excess of zero percent for bilateral hearing loss is denied. 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 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases 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 (2017). Where there is a question as to which of two evaluations shall 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. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). 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 in 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 a 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). Here, that date is May 08, 2007. 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 June 2007 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 40 65 LEFT 15 15 15 20 50 The average decibel loss in the right ear was 34 and the left ear was 25. Speech audiometry revealed speech recognition ability of 98 percent in both ears. Applying the results from the June 2007 VA audiological examination to Table VI yields a Roman numeral value of I for the right ear and I for the left ear. Applying these values to Table VII, the Board finds that the Veteran's hearing loss substantiates a finding of zero percent disability. The Board also finds that the Veteran does not meet the criteria for an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, because the Puretone thresholds at the frequencies of 1000, 2000, 3000 and 4000 Hertz are not 55 decibels or more, and the Puretone threshold is not 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(b). In an October 2010 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 35 70 LEFT 25 20 25 30 55 The average decibel loss in the right ear was 34 and the left ear was 33. Speech audiometry revealed speech recognition ability of 96 percent in both ears. Applying the results from the October 2010 VA audiological examination to Table VI yields a Roman numeral value of I for the right ear and I for the left ear. Applying these values to Table VII, the Board finds that the Veteran's hearing loss substantiates a finding of zero percent disability. The Board also finds that the Veteran does not meet the criteria for an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, because the Puretone thresholds at the frequencies of 1000, 2000, 3000 and 4000 Hertz are not 55 decibels or more, and the Puretone threshold is not 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(b). The Board notes that in December 2014, the Veteran submitted a private audiological evaluation. The examination revealed that the Veteran’s word recognition score was 80 percent in the right ear and 84 percent in the left ear. The Board noted that this private clinic did not specify whether the Maryland CNC was utilized in the examination. When a VA examiner contacted this clinic in February 2016, and requested clarification, the clinic declined to comment, citing HIPPA protection laws. The examiner who contacted the clinic found that he could not determine whether the Maryland CNC was utilized and noted that the results of the private audiological examination were questionable as the results were significantly worse than the results from the three VA audiological examinations provided to the Veteran over the years. In the most recent August 2015 VA examination, the examiner asked whether the Veteran had experienced any head trauma that could account for such drastic changes in his hearing and the Veteran denied any such injuries. The examiner also noted that there was no significant change in hearing acuity from the 2007 and 2015 VA examinations, further reinforcing the examiner’s opinion that the April 2014 private examination is to be considered skeptically. As the Board cannot determined whether the Maryland CNC was utilized as required by VA regulations, this examination could not be analyzed for rating purposes. In an August 2015 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 40 70 LEFT 25 25 25 30 60 The average decibel loss in the right ear was 39 and the left ear was 35. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear. Applying the results from the August 2015 VA audiological examination to Table VI yields a Roman numeral value of I for the right ear and I for the left ear. Applying these values to Table VII, the Board finds that the Veteran's hearing loss substantiates a finding of zero percent disability. The Board also finds that the Veteran does not meet the criteria for an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, because the Puretone thresholds at the frequencies of 1000, 2000, 3000 and 4000 Hertz are not 55 decibels or more, and the Puretone threshold is not 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(b). The Board notes that in December 2019, the Veteran submitted a private examination, however the private physician did not utilize the Maryland CNC, invalidating this examination for rating purposes. In an October 2020 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 40 55 85 LEFT 40 35 65 80 85 The average decibel loss in the right ear was 53 and the left ear was 66. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 82 percent in the left ear. Applying the results from the October 2020 VA audiological examination to Table VI yields a Roman numeral value of II for the right ear and IV for the left ear. Applying these values to Table VII, the Board finds that the Veteran's hearing loss substantiates a finding of zero percent disability. The Board also finds that the Veteran does not meet the criteria for an exceptional pattern of hearing impairment under 38C.F.R. §4.86, because the Puretone thresholds at the frequencies of 1000, 2000, 3000 and 4000 Hertz are not 55 decibels or more, and the Puretone threshold is not 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(b). The preponderance of the evidence shows that the Veteran is not entitled to a compensable evaluation for bilateral hearing loss throughout the appeal period. It is further argued that an extraschedular rating for the Veteran's bilateral hearing loss is warranted because it manifested in ways not contemplated by the applicable rating criteria. Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, in determining whether a referral for extraschedular evaluation is warranted, the Board must consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Second, if there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. When those two elements are met, the appeal must be referred to the Under Secretary for Benefits or the Director of Compensation Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. Regarding the first step of Thun, the Board finds that the Veteran's claimed symptoms of ear itching, pain, popping, leakage, and imbalance are not due to the Veteran’s service-connected bilateral hearing loss condition. In the December 2014 hearing, the Veteran reported ear leakage and itching. In a February 2011 VA treatment record, the Veteran complained of ear pain and denied that it was due to his hearing aids. August 2015 VA treatment records noted that the Veteran complained of popping and clicking in his ears as well as ear pain. In November 2019 and December 2019, the Veteran submitted private examinations regarding his associated ear symptoms. In the November 2019 private examination, the physician diagnosed the Veteran with progressive hearing loss, imbalance, otalgia, and eczema of the ear canals. In a December 2019 addendum, this physician opined that the Veteran’s ear pain could be due to improper molding of his hearing aids and stated that his eczema could also be due to the hearing aids. The examiner stated that the Veteran’s vestibular and imbalance issues would likely require further testing. The examiner stated that the Veteran’s ear pain, itching, and balance disturbances were at least as likely as not related to his active service or secondary to treatment rendered for service-connected disabilities. In a February 2020 decision, the Board determined that the November 2019 and December 2019 private opinions were inadequate due to several inconsistencies and vague rationales therefore the Board places less probative weight on this opinion. The Veteran received an October 2020 VA examination in order to determine the etiology of the Veteran’s several ear symptoms. The examiner determined that the Veteran’s reported symptoms of ear pain, popping, itching, drainage, and balance issues were less likely than not related to the Veteran’s hearing loss condition. The examiner explained that hearing loss could be either sensorineural or conductive and that the Veteran had sensorineural hearing loss. The examiner stated that sensorineural hearing loss, the type associated with noise exposure, was due to damage of the inner ear hair cells that convert sound energy into electrical energy that the brain can interpret. While conductive hearing loss occurred when there is a problem getting sound from the external environment to the inner ear, such as cerumen impaction, problems with the tympanic membrane, or problems with the middle ear. The examiner found that the Veteran’s claimed symptoms could not be caused by sensorineural hearing loss. The examiner stated that certain causes of conductive hearing loss, such as Eustachian tube dysfunction or middle ear infections could cause such symptoms, but that the Veteran’s type of sensorineural hearing loss could not patho-physiologically cause such symptoms. The Board finds this opinion highly probative evidence as they are provided upon review of the relevant facts (to include lay statements of symptomatology that the Board found probative) and are supported by explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Ultimately, the Board finds that the Veteran’s claimed symptoms are not related to his sensorineural hearing loss. The physician from the November 2019 private examination and December 2020 addendum ultimately found that the Veteran’s ear itching, pain, and leakage were due to the Veteran’ hearing aids, while also finding that the Veteran’s imbalance required further testing. The physician did not relate the Veteran’s claimed symptoms to the Veteran’s hearing loss and the opinion itself was deemed inadequate for inconsistencies. The October 2020 VA opinion is well-reasoned and support by a thorough medical explanation. As such, the Board finds that these symptoms are not associated with the Veteran’s bilateral hearing loss, and they cannot be considered for extraschedular consideration. Thus, the schedular rating is adequate, and the first prong of Thun has not been satisfied. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ashley Ki 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.