Citation Nr: 21068908 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 17-55 682 DATE: November 15, 2021 ORDER An initial rating higher than 0 percent for bilateral hearing loss is denied. FINDING OF FACT Examination of the Veteran's hearing has produced a puretone threshold average and speech discrimination score warranting Roman numeral designations no higher than I for right ear and I for the left ear. CONCLUSION OF LAW The criteria for a rating higher than 0 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1980 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied a higher initial rating for the Veteran's service-connected hearing loss in a November 2019 decision. In November 2020, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand (JMR) and vacated the Board's November 2019 decision, remanding the matter for action consistent with the terms of the JMR. In March 2021, the Board remanded the matter for further development. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations 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. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). For the reasons discussed below, the Board finds that the criteria for a rating higher than 0 percent for the Veteran's bilateral hearing loss have not been met. A. Rating Criteria Hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). Examinations will be conducted without the use of hearing aids. Id. Table VI (in 38 C.F.R. § 4.85) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. § 4.85(d). The Roman numeral designation is located at the point where the horizontal column corresponding to the percentage of discrimination and the vertical column corresponding to the puretone threshold average intersect. § 4.85(b). Table VIa is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. 38 C.F.R. § 4.85(e). Table VIa will be used when the examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86 (discussed below). Table VII (in 38 C.F.R. § 4.85) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85(e). The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. Id. The percentage evaluation is located at the point where the row and column intersect. Id. There are alternative criteria for certain exceptional patterns of hearing loss. Specifically, if the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation for hearing impairment will be determined 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 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 determined 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). B. Analysis The August 2015 VA examination report reflects audiometric testing results showing puretone thresholds for the right ear of 15 decibels (dB) at 1000 Hertz, 25 dB at 2000 Hertz, 35 dB at 3000 Hertz, and 45 dB at 4000 Hertz. The puretone threshold average was 30 dB. The speech discrimination score based on the Maryland CNC Word List for the right ear was 94 percent. The left ear had puretone thresholds of 15 dB at 1000 Hertz, 15 dB at 2000 Hertz, 25 dB at 3000 Hertz, and 40 dB at 4000 Hertz. The puretone threshold average was 24 dB. The speech discrimination score for the left ear was 96 percent. Applying Table VI to the above results, the right ear is assigned a Roman numeral designation of I, and the left ear is assigned a Roman numeral designation of I. The point where designations I and I intersect in Table VII yields a rating of 0 percent. 38 C.F.R. § 4.85, DC 6100. The June 2021 VA examination report reflects audiometric testing results showing puretone thresholds for the right ear of 25 dB at 1000 Hertz, 25 dB at 2000 Hertz, 30 dB at 3000 Hertz, and 40 dB at 4000 Hertz. The puretone threshold average was 30 dB. The speech discrimination score based on the Maryland CNC Word List for the right ear was 98 percent. The left ear had puretone thresholds of 20 dB at 1000 Hertz, 20 dB at 2000 Hertz, 25 dB at 3000 Hertz, and 40 dB at 4000 Hertz. The puretone threshold average was 26 dB. The speech discrimination score for the left ear was 98 percent. Applying Table VI to the above results, the right ear is assigned a Roman numeral designation of I, and the left ear is assigned a Roman numeral designation of I. The point where designations I and I intersect in Table VII yields a rating of 0 percent. 38 C.F.R. § 4.85, DC 6100. Because the Veteran's hearing loss is not manifested by an exceptional pattern, as defined in § 4.86(b), the alternative criteria do not apply. See 38 C.F.R. § 4.86. With regard to functional impairment due to the Veteran's hearing loss, the VA examination reports reflects that he stated that he has to ask people to repeat themselves, and finds it more difficult to hear in noisy settings. He had to make the volume louder on his phone, television, and music. The Board finds that, when considering the severity of the Veteran's hearing loss and associated functional impairment, the criteria for a higher rating are not met, and referral for extraschedular consideration is not warranted, for the reasons that follow. Because the ratings provided in the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless is still considered adequate to address the average impairment in earning capacity caused by the disability. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). These criteria involve distinct elements, each of which must be satisfied to warrant extraschedular referral. Chudy v. O'Rourke, 30 Vet. App. 34, 37-38 (2018); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). The first element requires the Board to determine whether the evidence presents such an exceptional or unusual disability picture that the available schedular evaluations for the disability under consideration are inadequate. Thun, 22 Vet. App. at 115. This requires the Board to compare the Veteran's symptoms and their severity with those contemplated by the rating schedule. King v. Shulkin, 29 Vet. App. 174, 178-79 (2017). If the Board determines that the Veteran's symptoms or their severity is not contemplated by the rating schedule, the second element requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. at 116. If the first two elements are met, then under the third element the Board must refer the claim to the Under Secretary for Benefits or the Director of Compensation Service for a determination as to whether an extraschedular rating is warranted. Id. If either of the first two elements is not satisfied, then referral is not warranted. Chudy, 30 Vet. App. at 37-38; Yancy v. McDonald, 27 Vet. App. 484, 494-95 (2016). The Veteran's difficulties hearing and understanding speech and other sounds in various contexts, as described by him at the VA examinations, are contemplated by the schedular criteria, and not a basis in itself for assigning a higher rating or referring the case for extraschedular consideration. "[W]hen 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." Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). In that regard, the evaluation of hearing loss under the schedular criteria is based on the results of a puretone audiometry test and a controlled speech discrimination test. 38 C.F.R. § 4.85(a). These tests contemplate the functional effects of difficulty hearing and understanding speech and other sounds. Doucette, 28 Vet. App. at 369 (holding 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"). Accordingly, the symptoms and severity of the Veteran's hearing loss, and associated functional impairment, do not constitute an exceptional or unusual disability picture when compared with the applicable schedular criteria. See id. His hearing loss has not met the criteria for a higher schedular rating, as shown above. The October 2021 appellate brief asserts that the interplay between the Veteran's hearing loss and tinnitus warrants a compensable evaluation for hearing loss because "it is reasonably inferable that his hearing loss is exacerbated by tinnitus." That observation does not support a higher rating. The Veteran's hearing loss is evaluated based on audiometric testing, as discussed above. Thus, if his tinnitus has an impact on his ability to hear, the effects of that impact are already reflected in the audiological test results on which the rating is based. As noted in the appellate brief, tinnitus itself is a distinct disability that is separately rated under a different diagnostic code specific to tinnitus. See 38 C.F.R. § 4.87, DC 6260. Accordingly, the presence of tinnitus in itself does not warrant referral for extraschedular consideration. See 38 C.F.R. § 3.321(b). The Board also notes that service connection has not been established for tinnitus, which was denied in the October 2015 rating decision; he has not appealed that denial. Because the preponderance of the evidence is against a higher rating for the Veteran's hearing loss, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.