Citation Nr: 21062934 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 13-06 227A DATE: October 12, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to an extraschedular rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is manifested by no more than Level I in the right ear and Level I in the left ear. 2. The Veteran's bilateral hearing loss does not present an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization, that application of the regular schedular standards would be impracticable. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an extraschedular rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(b)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1955 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge during a February 2017 hearing. A transcript of the hearing is associated with the Veteran's claim file. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). This matter was previously before the Board in December 2017, wherein the Board denied the Veteran a compensable rating for bilateral hearing loss. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The parties agreed to a Joint Motion for Remand (JMR) in December 2018 as the Board failed to adequately explain whether treatment records from Palm Bay Hospital were associated with the claims file and were available for the Board to consider in making its decision. The matter was before the Board again in June 2019 and the case was remanded to obtain private treatment records, including those from Palm Bay Hospital and to obtain a new VA examination for consideration on a schedular and extraschedular basis. In August 2020, the Board remanded the issues to obtain records from Dr. T.A. and another VA examination as the previous examination in February 2020 did not adequately describe the functional effects caused by the Veteran's hearing loss. The case was before the Board again in March 2021 and the Board found that another release for Dr. T.A. with specific dates of treatment should be provided to obtain the private treatment records. The Board remanded the claims to obtain a new release from Dr. T.A. and to refer the claim for bilateral hearing loss to the VA Director of Compensation Service for extraschedular consideration. The matter has returned to the Board for appellate consideration. 1. Entitlement to a compensable rating for bilateral hearing loss The Veteran contends that he is entitled to a compensable rating for his bilateral hearing loss. As noted above, the March 2021 Board decision remanded the case to obtain treatment records from Dr. T.A. The RO sent the Veteran a letter requesting him to submit private treatment records, including those from Dr. T.A. or to provide to the VA a release so that the RO may obtain records on his behalf. To date, the Veteran did not respond to the request. The Board finds that there has been substantial compliance with the remand orders and the Board may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App 268 (1998). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Generally, 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. In evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Testing for hearing loss is conducted by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC). The evaluation is based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § § 4.85. Table VII in the schedule is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear, the horizontal rows representing the ear having better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is indicated where the row and column intersect. 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. See 38 C.F.R. § § 4.85(c). When the puretone 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. See 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 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. See 38 C.F.R. § § 4.86(b). The Veteran was afforded a VA examination in December 2010. The Veteran's puretone thresholds, in decibels, and Maryland CNC results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 35 35 45 LEFT 15 45 20 20 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. The average decibel loss was 33 in the right ear and 25 in the left ear. These audiometry test results equate to Level I in the right ear and Level I in the left ear using Table IV. 38 C.F.R. § § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, the Veteran's hearing results in noncompensable disability rating. 38 C.F.R. § 4.85. In June 2017, the Veteran was examined again for his bilateral hearing loss. The Veteran's puretone thresholds, in decibels, and Maryland CNC results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 40 45 50 LEFT 25 55 30 40 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. The average decibel loss was 40 in the right ear and 38 in the left ear. These audiometry test results equate to Level I in the right ear and Level I in the left ear using Table IV. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, the Veteran's hearing results in noncompensable disability rating. The Veteran was afforded another VA examination in February 2020. The results of the February 2020 VA examination are as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 45 55 55 LEFT 20 50 30 50 The average puretone threshold at these frequencies was 45 for the right ear and 38 for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. These audiometry test results equate to Level I in the right ear and Level I in the left ear using Table IV. 38 C.F.R. § § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, the Veteran's hearing results in noncompensable disability rating. Most recently, the Veteran was examined again in November 2020. The Veteran's puretone thresholds, in decibels, and Maryland CNC results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 40 50 50 LEFT 30 50 35 40 The average puretone threshold at these frequencies was 43 for the right ear and 39 for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. These audiometry test results equate to Level I in the right ear and Level I in the left ear using Table IV. 38 C.F.R. § § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, the Veteran's hearing results in noncompensable disability rating. The Board notes that Table VIA is not applicable because there is no indication that speech discrimination testing was inappropriate for the Veteran, and the audiometric results did not show the Veteran's threshold to be 55 decibels or more at each of the four specific frequencies (1000, 2000, 3000, and 4000 Hertz), or that his puretone threshold was 30 or lower at 1000 Hertz and 70 or more at 2000 Hertz. See 38 C.F.R. § 4.8(c), 4.86(a). During the entire period on appeal, the Board finds that the Veteran's hearing was no worse than Level I in the right ear and Level I in the left ear. Thus, the Veteran is entitled to a noncompensable disability rating for bilateral hearing loss. 38 C.F.R. § 4.85. To the extent that the Veteran contends that his hearing loss is more severe than evaluated, the Board observes that he is competent to report his hearing loss symptoms. Nevertheless, the Veteran is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the claim for a compensable disability rating for bilateral hearing loss. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to an extraschedular rating for bilateral hearing loss The Veteran asserts that his bilateral hearing loss warrants an extraschedular evaluation. The determination of whether a veteran is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111 Vet. App. (2008). If the Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. 38 C.F.R. § 3.321(b)(1). The Board observes that in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the Court held that the rating criteria for hearing loss "contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure. Thus, when a veteran'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." Id. at 369. The Court suggested that an extraschedular rating for hearing loss disability might be appropriate if the claimant's hearing loss has functional effects not contemplated by the rating schedule, "such as dizziness, vertigo, ear pain, etc." Id. In this case, the Board finds that the schedular criteria is adequate to rate the Veteran's bilateral hearing loss. In a May 2021 decision, the Director found that an extraschedular disability evaluation was not warranted. 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. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). At the February 2017 Board hearing before the undersigned, the Veteran testified that he stopped working partly because he could not hear too well. He was working burying telephone cables and was not able to hear his boss calling him. However, he also testified that he was not fired or ever lost money because of his hearing. See February 2017 Board hearing transcript at pgs. 10-11. At the Veteran's June 2017 hearing examination, the VA examiner noted that the Veteran has mild to moderate sensorineural hearing loss, but that it impacts his ability to function in an employment where he was dependent upon verbal communication, especially requiring use of non-face-to-face communications equipment (such as speakers, intercoms, telephones, etc.) or in a job which required a great deal of attention to high-pitched sounds (such as monitoring medical equipment or other "beeps and pings.") The examiner went on to state that while his choices of employment would be somewhat limited, and assistive devices might be required, the hearing loss alone should not preclude him from obtaining meaningful employment in a context where interpersonal communication or auditory monitoring is not required. The Veteran denied being fired, disciplined, or losing money by his company because he could not hear. The Veteran reported at the February 2020 hearing examination that he cannot hear his children. He must ask his daughters to repeat what they said, and he cannot hear his daughters on the telephone. The VA examiner stated that it is less likely than not that the Veteran's service-connected tinnitus worsens his ability to hear. Tinnitus involves hearing noise in one or both ears that is not caused by an external sound. Although severe tinnitus can interfere with hearing, the condition does not cause hearing loss. The Veteran was afforded a VA examination in November 2020. He stated that he has trouble talking to people on the phone and when people are talking to him face- to-face. The November 2020 VA examiner found that the Veteran's tinnitus impacts ordinary conditions of daily life, including the ability to work. The Veteran stated that his tinnitus gets low and then gets high. Then it gets so high that he flinches up. When the telephone rings he cannot hear it when the ringing is loud. He stated that when it gets louder, he does not hear anything at all. He reported that he cannot sleep at night. He must keep the television on all the time to distract him from the noise. Although the hearing aids help with the ringing, sometimes the ringing gets loud, and it brings on a headache and he needs to take aspirin to help him. The VA examiner stated that the Veteran could experience all or some of the following struggle during phone conversations, during face-to-face conversations, difficulty hearing and understanding speech and having a hard time focusing on a single source of sound in a noisy environment, struggling to understand/follow while listening to electronic sound sources like a television, and he may experience social withdrawal due to fear of misunderstanding words. The examiner found that there were no additional problems associated with the Veteran's hearing loss. The November 2020 concluded that the Veteran's hearing loss does not pose a functional impairment, as to markedly interfere with any occupational ability such as previous employment as a cable installer or other type of employment. The November 2020 examiner also provided rationale that the Veteran's Speech Recognition Scores were all conducted with masking noise present in the opposite ear, in accordance with VA guidelines. In addition, the referenced research presented by the Veteran's representative, focused on hearing impaired participants with permanent threshold shifts resulting in severe to profound sensorineural hearing loss with fair to poor speech scores noted. Furthermore, the authors of the said study noted a "good speech discrimination score." As per American Speech and Hearing Association (ASHA) guidelines, a good score is noted anywhere from 76-90% and an excellent score is noted at 91-100%. However, the documented scores for the Veteran according to the classification set forth by ASHA, which was also sourced in the aforementioned research, reported scores for this Veteran as excellent. Consequently, the examiner concluded the study that was used had little bearing on the observed ability of this Veteran. On review, the Board has considered the Veteran's reports of difficulty hearing, including conversations on the telephone with his daughters and face-to-face conversations. Such statements are competent inasmuch as they reflect observable symptoms of hearing loss. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds that the functional effects of the Veteran's bilateral hearing loss, including difficulty hearing other people, impaired communication, and poor social interactions are contemplated by the schedular criteria, including the criteria reflecting exceptional hearing patterns, because they describe consequences of decreased hearing ability. As the Court discussed in Doucette, such difficulties are contemplated by the schedular rating criteria for hearing loss. Thus, 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. Id. In short, the inherent purpose of the hearing loss schedular rating criteria is to determine, as far as practicable, the severity of the functional impact of hearing loss, including any resultant occupational and social impairment. Therefore, the schedular criteria contemplates the Veteran's difficulties functioning in at work listening to his employer or a social environment due to hearing loss. Subsequently, the Court also held that the complaint of difficulty understanding conversations in various contexts was "squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria." Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Most recently, the Court in Long v. Wilkie, 33 Vet. App. 167 (2020), reiterated that the rating criteria for hearing loss contemplates symptoms related to decreased hearing. Id. at 7-8. In this case, the Veteran reported decreased hearing acuity causing communication problems, specifically hearing people on the telephone, and talking with people face-to-face. The schedular rating criteria acknowledges that a veteran with hearing loss may be unable hear some words in normal conversation. That is why the schedular criteria requires speech recognition test scores. Stated another way, the schedular criteria recognizes the communication difficulties that arise with hearing loss. In a similar manner, the pure tone threshold scores recognize that hearing loss means a veteran may not hear certain sounds at times, for example, sirens. The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. See 64 Fed. Reg. 25206 (May 11, 1999) (discussing the regulatory history of 38 C.F.R. § 4.85); 59 Fed. Reg. 17295 (April 12, 1994) (intended effect of schedular criteria was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real-life industrial setting). Therefore, the ratings assigned for the service-connected hearing loss during the period on appeal contemplate all the Veteran's reported and observed symptoms, as set forth above, and the Veteran has not demonstrated any symptomatology/impairments associated with his hearing loss that falls outside the scope of the applicable criteria. The record does not demonstrate the Veteran had additional symptoms associated with his hearing loss such as dizziness, vertigo, ear pain during the appellate period. In this regard, at the most recent VA examination, the November 2020 VA examiner had stated that there were no additional problems associated with the Veteran's hearing loss. Furthermore, the Veteran has not reported, nor does the record reflect, frequent periods of hospitalization due to his hearing loss symptomatology. Thus, an exceptional disability picture is not shown and an extraschedular rating is not warranted. As such, the preponderance of the evidence is against the assignment of an extraschedular rating for bilateral hearing loss. There is no reasonable doubt to be resolved in the Veteran's favor, and the appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, Associate 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.