Citation Nr: 21001692 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-49 074 DATE: January 11, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for a right knee disorder, to include as secondary to service-connected disability is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss has been manifested by no worse than a Level III hearing impairment in each ear. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1966 to January 1968. The Veteran had been awarded service connection for left ear hearing loss and was assigned a noncompensable rating, which was timely appealed. During the pendency of the appeal, he was awarded service connection for right ear hearing loss, dated effective from December 3, 2013 (the date of claim for reopen for bilateral hearing loss). Accordingly, the issue before the Board has been recharacterized as entitlement to an initial compensable rating for bilateral hearing loss as reflected above. 1. Entitlement to an initial compensable rating for bilateral hearing loss disability Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Where there is a question as to which of the two evaluations shall be applied, 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. 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 puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100. There are alternative criteria for certain exceptional patterns of hearing loss. Specifically, if 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 Table 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). On the authorized audiological VA evaluation in November 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 55 60 75 LEFT 25 40 60 75 The Veteran’s average hearing puretone thresholds were 51 in the right ear and 50 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in each ear. Applying these values to Table VI yields a numeric designation of I for the left ear and I for the right ear. The point where designations I and I intersect on Table VII yields a 0 percent rating. The Veteran’s hearing impairment has not exhibited either pattern warranting application of the alternative rating criteria. See 38 C.F.R. § 4.86. On authorized audiological VA evaluation in October 2019, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 60 65 80 LEFT 45 60 80 90 The Veteran’s average hearing puretone thresholds were 58 in the right ear and 69 in the left ear. Speech audiometry revealed speech recognition ability of 85 percent in each ear. Applying these values to Table VI yields a numeric designation of III for the left ear and III for the right ear. The point where designations III and III intersect on Table VII yields a 0 percent rating. The Veteran’s hearing impairment has not exhibited either pattern warranting application of the alternative rating criteria. See 38 C.F.R. § 4.86. The evidence of record includes statements from the Veteran in support of his belief that a higher rating is warranted for his bilateral hearing loss. He has stated that he has difficulty hearing with background noises, he has difficulty communicating with others, he needs to be looking at a person in order to keep up with the conversation, and sometimes, he has to take a few moments to process what was said, which causes him to lag behind in conversation. He also complained of difficulty hearing the television, and that he close captioning on the television to understand what is being said. See October 2019 VA audiology examination report. As a layperson, the Veteran is competent to report symptoms related to his hearing. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Thus, the findings of the audiological examination are more probative than his lay contentions as to the extent of his hearing loss. Because disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluations to assign. Lendenmann, 3 Vet. App. at 345; 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Thus, when applying the audiological examination test results described above under the Rating Schedule, the Board is compelled to find against entitlement to a compensable rating for the Veteran’s hearing loss. The Board acknowledges the Veteran’s representative more recent assertion that extraschedular consideration is warranted. In this regard, the Veteran’s representative argued that the Veteran’s hearing loss impairment is severe and the evaluation of the severity of his disability “cannot solely rely on the speech discrimination test.” See November 2020 informal hearing presentation. 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. 38 C.F.R. § 3.321 (b) (1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must 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 Veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran’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, the Board finds that the schedular rating currently assigned for hearing loss reasonably describes the Veteran’s disability level and symptomatology. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran reports that his hearing loss impacts the ordinary conditions of his daily life as he had difficulty hearing. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The Court of Appeals of Veteran’s Claims (Court) has held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in everyday environment as these are precisely the effects that VA’s audiometric tests are designed to measure. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The situations noted by the Veteran in this case amount to decreased hearing and are not exceptional or unusual for someone with hearing loss. In Doucette, the Court recognized that there were other functional effects the rating criteria did not discuss or account for, such as dizziness, vertigo, ear pain, recurrent loss of balance, social isolation, etc. Id., 28 Vet. App. at *3, *4. No such effects are present in this case. Rather, VA treatment records show that the Veteran specifically denied any dizziness, vertigo, and ear pain. See August 2010 and October 2020 VA audiology consultation reports. Although the Veteran has complained of difficulty communicating with others, he has not reported symptoms of social isolation as functional impact due to his hearing loss disability during either of the VA examination or during the VA audiology consults. Instead, these records show the Veteran attends his VA clinical appointments without problems due to hearing impairment, he can converse with his treating medical providers, and he continues to describe having conversations with his wife and others, albeit strained to his hearing impairment. See October 2019 VA audiology examination report, and VA treatment records. The Board finds that the weight of the evidence demonstrates that the Veteran’s bilateral hearing loss disability causes him difficulty hearing but not social isolation. The Board finds that the functional impact that the Veteran describes as result of his bilateral hearing loss is contemplated by the rating criteria. As explained above, the rating criteria are designed to take into account testing that accurately measures difficulty hearing in an objective way and the Veteran’s reports of difficulty hearing do not represent an exceptional or unusual case. As such, the first Thun element cannot be met. Therefore, the Board concludes that referral of the Veteran’s bilateral hearing loss impairment for extra-schedular consideration pursuant to 38 C.F.R. § 3.321 (b) (1) is not in order. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected disability is remanded. The Veteran seeks entitlement to service connection for a right knee disorder. He asserts that his current right knee disorder is result of overcompensation and altered gait mechanics caused by his service-connected left knee and now service-connected lumbar spine disabilities. A November 2020 VA medical opinion was obtained that addresses whether the Veteran’s right knee disorder is secondary his left knee disability. The November 2020 VA examiner found that there is no medical evidence in the Veteran’s records to suggest that his right knee is related to or aggravated beyond its natural progression by his left knee disability, without further explanation. The Board finds that the VA examiner’s rationale statement it does not adequately address the Veteran’s assertion that his current right knee disorder is a result of overcompensation and altered gait mechanics caused by his service-connected left knee. Notably, the record contains the Veteran’s consistent reports that his left knee disability causes him pain and intermittent locking that affects his ability to ambulate. See February 2016 statement in support of case as well as November 2015, April 2016, October 2019, and November 2020 VA knee examination reports. Also, in support of his claim, the Veteran has submitted medical literature that supports finding that the disability of one leg can initiate or aggravate a disabling condition in the opposite lower extremity, to include causing or accelerating arthritis in the joints (usually the knee). See “Symptoms in the Opposite or Uninjured Leg,” Workplace Safety and Insurance Appeals Tribunal (August 2005). The Board finds that an addendum VA medical opinion is needed that addresses the Veteran’s contention that his right knee disorder is secondary to overcompensation and altered gait mechanics due to his left knee disability in consideration of the submitted medical literature. In addition, since the Board’s previous remand, the Veteran has been awarded service connection for lumbar spine disability. The Veteran has asserted that his current right knee disorder is secondary to his back disability. See September 2017 substantive appeal, VA Form-9. No medical opinion has been obtained that addresses the Veteran’s assertion. On remand, a supplement VA medical opinion should be obtained to address the Veteran’s contentions. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding whether the Veteran’s right knee disorder is at least as likely as not proximately due to or aggravated by now service-connected left knee and lumbar spine disabilities. The examiner is asked to consider the Veteran’s assertion that right knee disorder is a result of overcompensation and altered gait mechanics caused by his service-connected disabilities. If the examiner determines that additional examination of the Veteran is necessary to provide the requested opinion, such examination should be scheduled; however, the Veteran should not be required to report for another examination if it is not found to be necessary. The entire record should be made available to and reviewed by the VA examiner. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray 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.