Citation Nr: 21002589 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-37 711 DATE: January 14, 2021 ORDER Entitlement to a rating in excess of 90 percent prior to November 1, 2017, for service-connected bilateral hearing loss is denied. Entitlement to an effective date earlier than November 1, 2017, for the grant of entitlement to special monthly compensation (SMC) based on deafness in both ears is denied. FINDINGS OF FACT 1. Prior to November 1, 2017, the Veteran’s audiometric testing has revealed no worse than Level IX hearing in the left ear and Level X in the right ear, whether using Table VI or Table VIA. 2. The Veteran’s bilateral hearing loss met the criteria for a maximum rating under the rating schedule no earlier than November 1, 2017. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 90 percent prior to November 1, 2017, for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an effective date earlier than November 1, 2017 for the grant of SMC based on deafness in both ears have not been met. 38 U.S.C. §§ 1114(k); 5107; 38 C.F.R. §§ 3.350, 4.85. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1957 to May 1959. He died in May 2018, during the pendency of the appeal. His surviving spouse has been substituted as the Appellant in this appeal. 38 U.S.C. § 101(3); 38 C.F.R. § 3.1010. The issues on appeal were previously remanded in June 2020 for additional evidentiary development. Review of the record reveals that the Agency of Original Jurisdiction (AOJ) completed all requested development and, as a result, the appeal has been returned to the Board for consideration. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2020 the Board also granted entitlement to a TDIU for the entire period on appeal, and entitlement to an earlier effective date for the award of Dependents’ Educational Assistance. 38 C.F.R. § 20.1103. As such, these issues are no longer on appeal. 1. Entitlement to an increased rating for bilateral hearing loss. This appeal arises from a TDIU claim that was filed in February 2013 and was also accepted as an increased rating claim for service-connected bilateral hearing loss. The increased rating claim has a complex procedural history but, as it currently stands, the Veteran’s service-connected bilateral hearing loss is rated 90 percent disabling since the date of receipt of the TDIU and increased rating claim. See July 2016 Board decision. As noted, in January 2008, the AOJ issued a rating decision which granted a 100 percent schedular rating for service-connected bilateral hearing loss, effective November 1, 2017. The Veteran was notified of the AOJ’s determination but did not withdraw his appeal. Therefore, the increased rating claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the Board will consider whether the bilateral hearing loss disability warrants a rating in excess of 90 percent from February 2, 2013 (the date of receipt of the TDIU and increased rating claim) to November 1, 2017 (the date from which the total 100 percent schedular rating is granted). The Board notes that the Veteran disagreed with the effective date assigned for the increased 100 percent rating for service-connected bilateral hearing loss. See March 2018 notice of disagreement (NOD). However, this issue is not a separate issue but will be considered in conjunction with the increased rating claim for bilateral hearing loss. The criteria for rating hearing impairment utilize the results of controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA (in exceptional cases as described in 38 C.F.R. § 4.86), and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. The evidentiary record contains three audiological examinations that were conducted between February 2, 2013 and November 1, 2017, including a VA audiological examination conducted in May 2013 and private audiological examinations conducted in August 2013 and September 2014. Each of the foregoing contain audiograms and speech discrimination scores obtained using the Maryland CNC test, which is the information utilized by VA to evaluate the severity of hearing impairments. See 38 C.F.R. § 4.85. In June 2020, the Board remanded this claim to obtain the results of audiograms conducted during audiology consultations at VA in June 2012 and June 2013. Further review of the record reveals that the results of the June 2013 audiogram are associated with the claims file; however, the evidence reflects that the speech discrimination scores recorded at that time were obtained using the W-22 word list and not the Maryland CNC test as required by 38 C.F.R. § 4.85. Therefore, the June 2013 audiometric evaluation will not be considered in evaluating this claim. See June 2013 audiogram report; VA treatment record. Unfortunately, the AOJ was unable to obtain the results of the pure tone audiometry test conducted in June 2013. See October 2020 letter. Therefore, while the June 2012 treatment record reflects that word recognition scores were obtained using the Maryland CNC test, the Board is unable to use the audiology results obtained in June 2012, as all necessary information is not available. The results of the May 2013 VA examination indicate there was an average pure tone threshold in the Veteran’s left ear of 86 decibels with speech discrimination of 72 percent, while the average pure tone threshold in the right ear was 96 decibels with speech discrimination of 50 percent. Evaluating these test scores using Table VI shows that the Veteran’s hearing acuity was at Level VII in his left ear and Level IX in his right ear, which results in a 50 percent disability rating under Table VII. The Board notes that the results of the May 2013 audiogram reveal the Veteran demonstrated an exceptional pattern of hearing impairment as the documented pure tone thresholds in the left and right ear were 55 decibels or greater for each of the four specified frequencies. See 38 C.F.R. § 4.86. Therefore, the Board has also evaluated his test scores using Table VIA, which results in a Level VIII designation for the left ear and Level IX designation for the right ear and, in turn, also results in a 50 percent rating when charted on table VII. During the August 2013 private audiology evaluation, the average pure tone threshold in the Veteran’s left ear was 93.75 decibels with speech discrimination of 60 percent, while the average pure tone threshold in the right ear was 102.5 decibels with speech discrimination of 56 percent. The documented pure tone thresholds in the left and right ear also met the exceptional pattern of hearing impairment, as they were 55 decibels or greater for each of the four specified frequencies in each ear. Therefore, the Board evaluated the test scores using Tables VI and VIA. Using Table VI, the Veteran’s hearing acuity was at Level VIII in his left ear and Level IX in his right ear, which results in a 50 percent disability rating under Table VII. However, using Table VIA, the Veteran’s hearing acuity was at Level IX in the left ear and Level X in the right ear, which results in a 70 percent rating under Table VII. During the September 2014 private evaluation, the average pure tone threshold in the Veteran’s left ear was 87.5 decibels with speech discrimination of 64 percent, while the average pure tone threshold in the right ear was 93.75 decibels with speech discrimination of 44 percent. The evidence also reflects that the documented pure tone thresholds again met the exceptional pattern of hearing impairment in each ear and, thus, Tables VI and VIA will be utilized. However, using Table VI and Table VIA, the Veteran’s hearing acuity was at Level VIII in his left ear and Level IX in his right ear, which results in a 50 percent disability rating under Table VII. The Veteran was afforded another VA examination in November 2017, during which the Veteran’s hearing acuity was at Level XI in the left and right ear using Table VI, which resulted in the assignment of a 100 percent rating, effective November 1, 2017. See December 2017 rating decision. Despite the difference in the findings between the audiograms conducted throughout the appeal period, the Board notes that none of the audiological findings support the grant of a rating in excess of 90 percent under Table VI or Table VIA. Indeed, as shown above, the evidence does not reflect that the Veteran’s bilateral hearing impairment has been more disabling than Level IX hearing in the left ear and Level X in the right ear, whether using Table VI or Table VIA. Therefore, a rating higher than 90 percent is not warranted for the Veteran’s bilateral hearing disability at any point during the relevant time period. The Board has considered the lay statements of record regarding the impact the Veteran’s hearing impairment had on his ability to communicate with others, drive, and work in evaluating this claim. However, it must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The VA examiners reported the effects of the Veteran’s hearing loss on his daily activities and occupational functioning. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, such factors were considered in the calculation and formation of the rating schedule criteria. See 59 Fed. Reg. 17295 (April 12, 1994). Additionally, the Board notes that the issue of consideration of an extraschedular rating was raised by the Veteran’s attorney in a statement received in March 2018 wherein he asserted that an extraschedular 100 percent rating is warranted because the Veteran’s bilateral hearing loss rendered him completely dependent upon family to drive him and that his symptoms were so severe that he could not functional normally and had to be taken care of. In this regard, the Veteran’s attorney also noted that the Veteran’s hearing loss affected his everyday life, as he could not drive or work and his condition presented safety issues in that he could not hear sirens, other cars, or other people talking to him. See March 2018 attorney statement. See March 2018 attorney statement. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. With respect to the first element, the Board finds that comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. In this case, the rating criteria for hearing loss contemplate the functional effects of the Veteran’s decreased hearing and difficulty understanding speech and other sounds, as well as his use of hearing aids. Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371, *6–*15 (Vet. App. Dec. 30, 2020). The law specifically provides that when a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. See id., Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). The Board notes that the Veteran’s attorney has also asserted that the Veteran’s hearing loss presented safety issues with respect to driving and working and resulted in his need to be taken care of by family members. However, the Board notes that the functional limitations and impairment, including unemployability, caused by any such safety issues are contemplated by the award of a total disability rating based upon unemployability (TDIU) due to his hearing loss disability that was granted, effective February 2, 2013. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). As for the alleged need to be taken care of, the Board notes that, while the lay and medical evidence of record shows that the Veteran was dependent on his wife to communicate even with the use of hearing aids, this impairment was due to his inability to hear which is contemplated by the schedular criteria. There is no credible evidence showing that his hearing loss required that he be completely dependent upon others for his daily needs or that the symptoms or functional impairment caused by his hearing loss, while severe, are not adequately contemplated by the schedular criteria provided in the rating schedule. Therefore, the Board finds the threshold issue under Thun is thus is not met, and further consideration of an extraschedular rating is not warranted. Based on the foregoing, the Board finds the preponderance of the evidence is against the claim for a rating higher than 90 percent for service-connected bilateral hearing loss and, as such, and the claim is denied. 2. Earlier effective date for SMC based on deafness in both ears. The Veteran is seeking an effective date earlier than November 1, 2017 for the grant of entitlement to SMC based on deafness in both ears. He has specifically asserted that SMC based upon deafness is warranted from February 18, 2011, as that is the date the Veteran’s hearing loss was shown to be of such a diminished quality. See March 2018 attorney statement. A note associated with Table VII in 38 C.F.R. § 4.85 indicates that entitlement to SMC must be reviewed when a hearing loss disability is rated at 100 percent. Under the law, a veteran who, as the result of a service-connected disability has deafness in both ears shall receive SMC under the provisions of 38 U.S.C. § 1114(k). Deafness of both ears “will be held to exist where examination in a VA authorized audiology clinic under current testing criteria shows bilateral hearing loss is equal to or greater than the minimum bilateral hearing loss required for a maximum rating evaluation under the rating schedule.” 38 C.F.R. § 3.350(a)(5). In order to warrant a 100 maximum percent rating under the rating schedule, the Veteran’s hearing acuity must be at Level XI in both ears. See 38 C.F.R. § 4.85, Table VII. In this case, the evidence reflects that the Veteran’s bilateral hearing loss met the criteria for a maximum rating under the rating schedule no earlier than the VA examination conducted in November 2017. As discussed above, the Board considered all relevant evidence of record and noted that the competent and credible audiograms of record, including those conducted by VA, showed no higher than Level IX hearing in the left ear and Level X in the right ear prior to November 1, 2017 and, thus, did not warrant a schedular rating higher than 90 percent. The Board also determined that there was no basis to assign an extraschedular 100 rating for his hearing loss, as alleged by his representative. Therefore, the Board finds that an effective date earlier than November 1, 2017 for SMC based on deafness in both ears is not warranted, as the Veteran is not entitled to a 100 percent disability rating, which is the equivalent of deafness in both ears for purposes of 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(5), prior to that date. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.