Citation Nr: 21063666 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-45 919 DATE: October 15, 2021 ORDER Entitlement to ratings for bilateral hearing loss in excess of 10 percent prior to September 28, 2019, and in excess of 40 percent from that date, is denied. FINDING OF FACT On March 2013 VA audiological examination audiometry, the Veteran was found to have level IV hearing acuity in each ear; on September 2015 VA examination audiometry, his right ear hearing acuity was level II, and his left ear hearing acuity was level VI; and on September 28, 2019 VA examination audiometry, his hearing acuity was level VII in each ear. CONCLUSION OF LAW Ratings for bilateral hearing loss in excess of 10 percent prior to September 28, 2019, and in excess of 40 percent from that date, are not warranted. 38 U.S.C. §§1155, 5107; 38C.F.R. §§4.85, Code 6100, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from February 1958 to February 1961. This matter is before the Board of Veterans Appeals (Board) on appeal from a September 2015 rating decision. In February 2018, a videoconference hearing was held before the undersigned; a transcript is in the record. In March 2018, the matter was remanded for further development. An interim ( October 2019 ) rating increased the rating to 40 percent, effective September 28, 2019. A January 2020 Board decision denied entitlement to ratings for bilateral hearing loss in excess of 10 percent prior to September 28, 2019, and in excess of 40 percent from that date. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC). A December 2020 CAVC Order vacated the Board's January 2020 decision and remanded it to the Board for further development and re-adjudication consistent with terms of a December 2020 Joint Motion for Remand (JMR). In May 2021, the case was remanded for further development. Entitlement to ratings for bilateral hearing loss in excess of 10 percent prior to September 28, 2019, and in excess of 40 percent from that date, is denied. The Veteran asserts that his hearing acuity has declined and warrants higher ratings. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 C.F.R. §1155; 38 C.F.R. Part 4. Where entitlement to compensation has been established and increase in the disability rating is at issue, the present level of impairment is of primary concern. "Staged" ratings may be assigned for distinct periods when different levels of impairment are shown. See Hart v. Mansfield, 21Vet. App.505 (2007). Ratings for hearing loss disability are derived from Table VII of 38C.F.R. §4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3Vet. App.345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with average Puretone thresholds. The average threshold is obtained from Puretone audiometry in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38C.F.R. §4.85. Rating specialists use either Table VI or VIa of 38C.F.R. §4.85 to determine the correct Roman numeral designation. Table VIa is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38C.F.R. §4.86). One such pattern occurs when Puretone thresholds at each of the four specified frequencies are 55 decibels or more. Another occurs when the Puretone threshold at 1000 Hertz is 30 decibels or less and the Puretone threshold at 2000 Hertz is 70 decibels or more. 38C.F.R. §4.86. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38C.F.R. §4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. §5107; 38C.F.R. §§3.102, 4.3. VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability occurred during such period. 38C.F.R. §§3.157, 3.400(o)(2). Here, the evaluation period begins in June 2014 (a year prior to VA's receipt of the Veteran's June 29, 2015 claim for an increased rating) to the present. On March 2013 VA examination audiometry puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 30 60 70 75 59 LEFT 40 65 75 65 61 Speech audiometry revealed speech discrimination ability of 78 percent in the right ear and 82 percent in the left. Under Table VI, the Veteran had level IV hearing acuity in each ear. The examiner opined that the Veteran's hearing loss does "impact ordinary conditions of [the Veteran's] daily life, including the ability to work". The provider noted that the Veteran's chief complaint was an inability to "understand other people when they are not facing him". On March 2014 VA audiometry, puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 20 55 70 65 53 LEFT 45 65 75 70 64 The examiner indicated that there was no significant change in the Veteran's hearing since a 2012 evaluation. Speech discrimination testing used a (NU6) word list rather than the Maryland CNC taped list in 38 C.F.R. § 4.85. In September 2014 lay statements, the Veteran's wife and other relatives reported that his hearing had worsened (as he could not hear conversation or the television) adversely affecting his emotional well-being (to include because he cannot hear his grandchildren talk to him). They noted that he is often frustrated, as his hearing aids cause discomfort (from moisture accumulation). September 2014 private audiometry (in chart form) suggests a worsening of the Veteran's hearing loss disability. [A September 2019 VA examiner was asked to review the audiometry and reconcile the findings with those on current examination. The provider explained that the audiometry "was performed using a different set of words (NU6) and also using live speech versus the list used by VA system (Maryland CNC taped list)", and indicated that using a different delivery system can influence the speech discrimination scores and SRT (speech reception threshold).] A May 2015 VA optometry treatment record notes that the Veteran reported occasional dizziness and diplopia. On September 2015 VA examination, audiometry revealed that puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 70 75 60 60 LEFT 55 75 80 70 70 Speech audiometry revealed speech discrimination ability of 94 percent in the right ear and 84 percent in the left. Under Table VI, the Veteran had level II hearing acuity in the right ear. Under table VIa (because Puretone thresholds at each of the four specified frequencies were 55 decibels or more, and rating under Table VIa was more advantageous), he had level VI hearing acuity in the left ear. The Veteran stated: "Even with my hearing aids on, there are a lot of people I just can't understand --like my wife" and that he sometimes experienced a "slight imbalance." The examiner opined that the hearing loss does "impact ordinary conditions of [the Veteran's] daily life, including the ability to work". A January 2016 VA treatment record notes a history of depressive disorder not elsewhere classified, and the Veteran reported that he currently did not experience dizziness. A January 2017 VA treatment record notes that the provider indicated that the Veteran had some dysphagia with a history of stricture, and he reported occasional depression. On February 2017 VA audiometry, puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 65 60 60 55 LEFT 55 65 65 60 61 The Veteran reported a possible decline in hearing since his last examination. No dizziness or otalgia was reported. The examiner indicated that the Veteran had mild to moderately severe sensorineural hearing loss (SNHL) in the right ear and moderate to moderately severe SNHL in the left ear, and also noted that there was a slight decrease in low frequency hearing in both ears since the last examination, but that the Veteran's hearing, overall, was relatively stable. Audiometry was performed using a different set of words (NU6) versus the Maryland CNC taped list required under 38 C.F.R. § 4.85. At the February 2018 videoconference hearing, the Veteran requested that his February 13, 2017 and March 7, 2017 VA medical records be obtained, and his wife testified that his hearing loss was starting to affect his speech patterns. [The Board notes that the February and March 2017 VA treatment records and March 2014 and February 2017 audiometry were obtained and are reported above.] An April 2018 VA treatment record notes that Veteran reported that he had been taking Sertraline intermittently since the 1990's for depressive symptoms. In lay statements received in June 2018, the Veteran's wife, other relatives, and a family friend indicated they observed a decline in his hearing acuity (in that he cannot hear conversations or the television) and related that the worsened hearing has adversely affected his emotional well-being because he is unable to hear his grandchildren talk to him. Additionally, they asserted that he spent more time alone, his hearing loss has affected his speech (causing an inability to communicate effectively), his "depression is very clear," and he cannot hear his wife (especially in the event of a slip and fall accident). On September 28, 2019 VA examination audiometry puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 70 80 80 80 78 LEFT 80 75 80 75 78 Speech audiometry revealed speech discrimination ability of 68 percent in the right ear and 72 percent in the left. Under Table VIa (because Puretone thresholds at each of the four frequencies were 55 decibels or more), he had level VII hearing acuity in each ear. The Veteran stated that he "struggles hearing people". The examiner noted "a worsening of the Veteran's symptoms", and opined that his hearing loss does "impact ordinary conditions of [his] daily life, including the ability to work". An August 2020 VA treatment record notes that the Veteran reported dysphagia (difficulty swallowing) which he had been experiencing for about one year. His wife related that he saw a speech therapist, but the treatment was not helpful. The provider noted that a review of the records indicated that the Veteran had a previous esophageal stricture dilated. A September 2020 VA treatment record notes that the Veteran reported dizziness after hitting his head. At the outset, the Board notes that the only audiometry during the period under consideration suitable for rating purposes (in accordance with 38 C.F.R. §4.85) was on September 2015 and September 28, 2019 VA audiological examinations. He also underwent VA audiometry (that was suitable for rating purposes in 2013, but that was prior to the period for consideration (albeit the best evidence regarding the severity of the hearing loss prior to September 2015). Regardless, the 2013 audiometry did not show a hearing loss that warranted a higher than 10 percent rating. The Veteran also underwent VA audiological evaluations in March 2014 and February 2017 and a private audiological evaluation in September 2014. The reports of those evaluations, consultations, and treatment are not suitable for rating purposes because the audiometry report was either incomplete (i.e., the September 2014 private evaluation, which did not indicate whether Maryland CNC speech testing was used and whether the provider was a licensed audiologist) or not in accordance with 38 C.F.R. §4.85 (the March 2014 and February 2017 VA evaluations, because the NU6 word list was used instead of the required Maryland CNC taped list). The Board notes that there was some fluctuation in puretone thresholds reported on the March 2013, March 2014, September 2015, and February 2017 audiometry and that there was actually some improvement in hearing acuity in the right ear from March 2013 to March 2014 and in both ears from September 2015 to February 2017. There was a decline in puretone thresholds between March 2014 and September 2015, but audiometry in September 2015 (which found hearing acuity in the right ear to be level II and hearing acuity in the left ear level VI) places the level of hearing loss shown by audiometry squarely within the criteria for a 10 percent rating under Table VII. As there is no other audiometry prior to September 28, 2019 suitable for rating purposes, that is the schedular rating that must be assigned for the period prior to that date. The audiometry on September 28, 2019 VA examination (which showed level VII hearing acuity in each ear, under the more favorable to the Veteran criteria in Table Via because he was shown to have an exceptional pattern of hearing loss) places his hearing acuity squarely within the parameters of the criteria for a 40 percent rating (under Table VII). Because there is not audiometry suitable for rating purposes that shows he has hearing loss of greater severity, that is the rating that must be assigned from the September 28, 2019 examination date (the record does not show such a level of severity earlier). Lendenmann, 3 Vet. App. 345; 38C.F.R. §4.85, Code 6100. The Board notes the lay accounts describing the difficulty the Veteran has had clearly understanding speech, that he has to ask speakers to repeat what they said, and that he has discomfort from use of hearing aids. He, his wife, and other relatives are competent to report such difficulties (and the Board finds no reason to question those accounts). However, he is not competent to establish by his own observation (or the observations of his wife, relatives, and friend) the level of hearing impairment present. That is a medical determination made based on findings on regulation-mandated diagnostic studies. See Moray v. Brown, 2Vet. App.211, 214 (1993). Accordingly, their observations of the Veteran are insufficient to establish that higher ratings are warranted (or establish that an increase in severity of the disability that warranted an increase in the rating from 10 to 40 percent was shown as of an earlier (unspecified) date (so as to warrant an earlier effective date for the increase. The Board notes that the Agency of Original Jurisdiction (AOJ), in an August 2021 supplemental statement of the case, determined that there was no evidence of any unusual or exceptional circumstances that would warrant referral for consideration of an extra-schedular rating. However, due to the various symptoms that the Veteran and his friends and family members assert are due to his hearing loss, the Board must consider on its own whether referral of the claim for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321 (b)(1); 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 claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the 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, the case must be referred to [the Director of the Compensation Service] to determine whether an extraschedular rating is warranted. The Board finds that the Veteran's, his wife's, and his relatives' and friend's statements describe the types of problems (understanding speech, hearing television and children) that are encompassed by the criteria for the schedular ratings assigned; therefore, the first prong of the Thun analysis is not satisfied (as relates to those problems). However, other problems such as speech difficulty, dizziness, imbalance, and depression, are not contemplated by the rating criteria and must be evaluated under the second prong of the Thun analysis. The Veteran reported a slight imbalance in September 2015 and dizziness (after hitting his head) in September 2020, however a review of the record did not find competent evidence indicate that such was secondary (due to) the Veteran's hearing loss disability, and neither symptom is shown to have been recurrent or to have caused marked interference with employment or periods of hospitalization. Regarding speech difficulty, a January 2017 VA treatment record notes that the provider indicated that the Veteran had some dysphagia with a history of stricture, and an August 2020 VA treatment record notes that the Veteran reported dysphagia which he had been experiencing for about one year, and the provider noted that a review of the records indicated that he had a previous esophageal stricture dilated. A review of the record did not find that any VA or private provider has related the Veteran's dysphagia to his hearing loss. Finally, regarding the Veteran's reports of depression, a January 2016 VA treatment record notes a history of depressive disorder not elsewhere classified, and a January 2017 VA treatment record notes that the Veteran reported occasional depression; and an April 2018 VA treatment record notes that Veteran reported that he had been taking Sertraline intermittently since the 1990's for depressive symptoms. It is not in dispute that he experiences depressive symptoms and has taken medication (albeit intermittently) for such symptoms for a considerable period. However, although the Veteran is competent to report depressive symptoms, he is not competent to establish by his own opinion that the depression is secondary to or a manifestation his hearing loss. No VA or private medical provider has, during the period on appeal, related such symptoms to his hearing loss, and a review of the records also did not find that the depressive symptoms have caused marked interference with employment or required hospitalization. Thus, regarding the symptoms of speech difficulty, dizziness, imbalance, and depression, the second prong of the Thun analysis is not satisfied (as relates to those problems). Considering the foregoing, referral for extraschedular rating consideration is not necessary. See Thun v. Peake, 22 Vet. App.111 (2008). Therefore, the preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.