Citation Nr: 21069144 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 13-27 297 DATE: November 17, 2021 ORDER Entitlement to an extraschedular 10 percent rating for bilateral hearing loss is granted. FINDING OF FACT The preponderance of the evidence indicates that the Veteran experiences mild, intermittent balance problems, dizziness, or vertigo due to his service-connected bilateral hearing loss. CONCLUSION OF LAW The criteria for entitlement to an extraschedular increased rating for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1963 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a VA Regional Office (RO). The Board remanded the Veteran's claim for an extraschedular rating in April 2015 and May 2017. The Board denied the Veteran's claim for an increased rating in February 2019. Subsequently, the Veteran appealed the denial of his increased rating claim to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a July 2021 decision, the Court vacated the Board's February 2019 decision, granted the parties' Joint Motion for Partial Remand (JMPR), and remanded the matter to the Board for action consistent with the ruling. The claim is now once again before the Board. 1. Entitlement to an extraschedular increased rating for bilateral hearing loss The Veteran asserts that he experiences symptoms, including balance problems, that are caused by his service-connected bilateral hearing loss and which are not contemplated by the rating criteria under Diagnostic Code 6100. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities 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. 38U.S.C. §1155; 38 C.F.R. § 4.1. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. To establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of puretone 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. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). The determination of a whether a veteran is entitled to an extraschedular rating is a three-step inquiry. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate by comparing the level of severity and symptomatology of a veteran's service-connected disability with the established criteria in the Rating Schedule. Id. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is therefore adequate. Id. Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology, then the Board must determine whether the veteran's exceptional disability picture exhibits other related factors such marked interference with employment and frequent periods of hospitalization. Id. Third, if the first two questions are answered in the affirmative, then the case must be referred to the Director of Compensation Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Id. The Board may not, in the first instance, assign an increased rating on an extraschedular basis, but may determine whether referral for extraschedular consideration is warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). In this case, the Veteran filed a claim for service connection for hearing loss that was received by VA in August 2000. This claim was granted in an April 2012 Board decision and implemented in a July 2012 rating decision, effective April 9, 2011. This was the date of the April 2011 VA examination for hearing loss that provided the first evidence that the Veteran's hearing loss met the criteria to be considered a disability under 38 C.F.R. § 3.385. During the Veteran's September 2013 VA examination for hearing loss, the Veteran reported that his hearing loss resulted in balance problems and difficulty understanding conversations. The examiner found that these symptoms affected his ability to work. The Veteran reported a history of dizziness and vertigo in his earliest VA examination for hearing loss in April 2002 as well. Based on the evidence of record, particularly the VA examinations of record, the Veteran's hearing loss has not the criteria for a compensable disability rating under DC 6100 at any time during the period on appeal. As the Veteran does not meet the criteria for a schedular compensable rating for his hearing loss, the Board must consider whether he is entitled to an extraschedular rating. First, the Board finds that the Veteran's balance problems, dizziness, and vertigo are exceptional symptoms not contemplated by the criteria under DC 6100. Additionally, there is no diagnosis for a separate condition covering those symptoms, such as Meniere's syndrome, so the Board finds that assigning a separate evaluation under another Diagnostic Code is less appropriate than consideration for an extraschedular rating under DC 6100. Second, the 2013 VA examiner found that the Veteran's symptoms affected his ability to work, so his symptoms do interfere with employment. Finally, the Veteran's claim for an extraschedular rating was referred to the Director, Compensation Service and considered in June 2016 and May 2018 VA memorandums. The Board is not bound by the Director's determination and will now consider the Veteran's claim for an extraschedular increased rating de novo. The Board finds the preponderance of the evidence is in favor of granting an extraschedular rating for the Veteran's hearing loss due to his unusual symptoms, including balance problems, dizziness, and vertigo. Based on the evidence of record, the Board finds that these symptoms are generally mild. See, e.g., September 2013, May 2004, and April 2002 VA examinations for hearing loss. Accordingly, an extraschedular 10 percent rating for hearing loss, due to mild, intermittent balance problems, dizziness, and vertigo, is granted, effective April 9, 2011, the current effective date for the grant of service connection for hearing loss. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board notes that the issue of entitlement to a total disability rating based upon individual unemployability (TDIU) is on appeal but is not before the Board at the present time. It was most recently remanded in a September 2020 decision along with the Veteran's claims for increased ratings for left knee disabilities and will be addressed in a separate Board decision. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.