Citation Nr: 21002801 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 14-08 808 DATE: January 15, 2021 ORDER Entitlement to a compensable rating for service-connected bilateral hearing loss, to include on both a schedular and extraschedular basis, is denied. FINDING OF FACT For the entire appeal period, the Veteran’s hearing acuity was not shown to be greater than Level III in the right ear and Level II in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for service-connected bilateral hearing loss, to include on both a schedular and extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.385, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 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 February 1970 to October 1971. In December 2017 and February 2020, the Board remanded the claim on appeal for further development and adjudication. The Board finds that there was substantial compliance with its December 2017 and February 2020 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Entitlement to a compensable rating for service-connected bilateral hearing loss, to include on both a schedular and extraschedular basis, is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.21. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that the severity of his bilateral hearing loss warrants a higher rating than that currently assigned. The Veteran filed his claim for an increased rating in June 2012, therefore the appeal period begins in June 2011. The Veteran’s bilateral hearing loss has been evaluated as noncompensable effective December 7, 1972. The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Table VIA is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (b). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Post-service treatment records reflect the Veteran’s reports of impaired hearing. He was afforded a VA examination in August 2012 and audiometric testing revealed the following: 500 1000 2000 3000 4000 6000 8000 AVG Right 25 25 25 50 90 85 75 48 Left 20 25 25 35 80 75 70 41 The pure tone threshold average was 48 in the right ear and 41 in the left ear. Speech recognition was 92 percent in both ears. The examiner reviewed the claims file and diagnosed bilateral sensorineural hearing loss. In November 2017 the Veteran underwent an additional VA examination and audiometric testing revealed the following: 500 1000 2000 3000 4000 6000 8000 AVG Right 30 30 20 70 100 90 80 55 Left 35 30 20 40 95 80 65 46 The pure tone threshold average was 55 in the right ear and 46 in the left ear. Speech recognition was 94 percent in both ears. The examiner reviewed the claims file and diagnosed bilateral sensorineural hearing loss. In July 2020 the Veteran underwent an additional VA examination and audiometric testing revealed the following: 500 1000 2000 3000 4000 6000 8000 AVG Right 30 30 40 100 100 90 90 67.5 Left 35 30 30 55 100 100 90 53.75 The pure tone threshold average when rounded was 68 in the right ear and 54 in the left ear. Speech recognition was 84 percent in the right ear and 88 in the left ear. The examiner reviewed the claims file and diagnosed bilateral sensorineural hearing loss. Throughout the appeal, the Veteran has submitted statements in which he has indicated his belief that his hearing loss warrants a rating higher than that which has been assigned. However, the Veteran has not made any specific allegations or contentions. At the time of the August 2012 VA audiological examination, the Veteran was shown to have an average pure tone hearing loss of 48 decibels in the right ear and 41 in the left ear, with 92 percent speech discrimination in both ears, which translates to a Roman numeral designation of I for both the right and left ears. At the time of the November 2017 VA audiological examination, the Veteran was shown to have an average pure tone hearing loss of 55 decibels in the right ear and 46 in the left ear, with 94 percent speech discrimination in both ears, which again translates to a Roman numeral designation of I for both the right and left ears. Furthermore, at the July 2020 VA examination, the Veteran was shown to have an average pure tone hearing loss of 67.5 decibels in the right ear and 53.75 in the left ear, with 84 percent speech discrimination in the right ear and 88 percent in the left ear, which translates to a Roman numeral designation of III for the right ear and II in the left ear. Thus, when applying Table VII, Diagnostic Code 6100, level III for the right ear and II in the left ear, equates to a noncompensable disability evaluation. Based on the average pure tone threshold findings from the VA examinations, when applying Table VII, Diagnostic Code 6100, the findings equate to a noncompensable disability evaluation. While documenting hearing loss, VA clinical records during this period do not address the severity of the Veteran’s bilateral hearing loss for rating purposes. There is simply no evidence to show that the Veteran met the rating criteria for a compensable rating. Therefore, the preponderance of the evidence shows that the Veteran is not entitled to a schedular compensable rating for his service-connected bilateral hearing loss. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. As for the Veteran’s claim for an extraschedular rating, the Board remanded the case for referral to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 3.321. In November 2019, the director reviewed the record and found it “supports the established criteria adequately describes the severity and symptoms of the Veteran’s bilateral hearing loss (and tinnitus). In addition, the evidence does not present an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization.” In addition, the Director determined that the evidence did not show an unusual or exceptional disability pattern that would render application of the regular rating criteria as impractical. Therefore, the Director determined entitlement to an extraschedular evaluation for bilateral hearing loss was not established. Thereafter, in December 2019 the RO again denied an increased rating for bilateral hearing loss on an extraschedular basis. In reviewing the record for evidence of frequent periods of hospitalization and employment impairment, there were no such findings. The Board finds the evidence in this case does not show such an exceptional disability picture that the available schedular ratings for the service-connected bilateral hearing loss are inadequate. A comparison between the levels of severity and symptomatology of the Veteran’s disability with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran’s disability levels and symptomatology. The Veteran’s signs and symptoms and their resulting impairment on his daily activities, are contemplated by the rating schedule. Therefore, those criteria are not inadequate. See 38 C.F.R. § 3.321 (b); Thun v. Peake, 22 Vet. App. 111 (2008). As shown above, the Veteran’s bilateral hearing loss disability results in difficulty hearing and listening during daily activities, such having normal conversations and conversations with his wife. Notably, these signs and symptoms, and their resulting impairment, are the cardinal symptoms and effects of hearing loss contemplated by the rating schedule. See Doucette v. Shulkin, 2017 WL 877340, at *5 (Vet. App. March 6, 2017) (“[T]he Court holds that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech.”); 38 C.F.R. §§ 4.85, Diagnostic Code 6100. Accordingly, the rating criteria contemplate the Veteran’s service-connected bilateral hearing loss disability. The Board is very sympathetic to the Veteran. However, to the extent that VA’s current rating schedule requires a significant degree of hearing loss (as measured by audiometric testing, to include speech recognition) before a Veteran can receive increased compensation, neither the Board nor the Court of Appeals for Veterans Claims itself has the power to change those requirements. See Wingard v. McDonald, 779 F.3d 1354, 1356 (Fed. Cir. 2015) (“Congress precluded the Veterans Court from ‘re-view[ing] the schedule of ratings for disabilities adopted under section 1155... or any action of the Secretary in adopting or revising that schedule.’ 38 U.S.C. § 7252 (b). That provision squarely precludes the Veterans Court from determining whether the schedule... substantively violates statutory constraints.”) Accordingly, a compensable rating on an extraschedular basis is not warranted. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016). There is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. Therefore an extraschedular rating is not warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.