Citation Nr: 21069537 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 05-02 935 DATE: November 18, 2021 ORDER Entitlement to a compensable extraschedular rating for left ear hearing loss for the period prior to January 11, 2005, is denied. FINDING OF FACT Prior to January 11, 2005, the schedular criteria adequately describes the severity and symptoms of the Veteran's left ear hearing loss and it doesn't present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. CONCLUSION OF LAW Prior to January 11, 2005, the criteria for a compensable extraschedular rating for left ear hearing loss for have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1962 to September 1965. He also had subsequent service in the Rhode Island National Guard and Army Reserves. The procedural history of this case is a prolonged one, involving multiple actions by the Board of Veterans' Appeal (Board) and United States Court of Appeals for Veterans Claims (Court). Specifically, this appeal to the Board arose from an April 2004 rating decision of the Department of Veterans (VA) Regional Office (RO). In September 2008 a Veterans' Law Judge not the undersigned, among other things, remanded the above claim. In February 2009 the Veteran testified at a personal hearing before a Veterans' Law Judge that has since retired and a transcript of that personal hearing has been associated with the claims file. In January 2021, the Board offered the Veteran an opportunity to have another personal hearing and gave him 30-days to reply to that offer. To date, the Veteran has not replied and therefore the Board finds that it can adjudicate the appeal without providing him with another personal hearing. In a May 2009 decision, a Veterans' Law Judge not the undersigned, among other things, denied claims for increased ratings for left ear hearing loss as well as bilateral hearing loss. The Veteran appealed the May 2009 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2010 memorandum decision by Judge Kasold, the Court vacated and remanded the May 2009 Board decision. In November 2010 the Board, among other things, Remanded the claim for a compensable extraschedular rating for left ear hearing loss for the period prior to January 11, 2005, nothwithstanding the fact that it was now 2010. In February 2016, the Director, Compensation and Pension issued a decision in which it denied the claim for a compensable extraschedular rating for left ear hearing loss for the period prior to January 11, 2005. In a June 2016 Board decision, a Veterans' Law Judge not the undersigned denied the claim for a compensable extraschedular rating for left ear hearing loss for the period prior to January 11, 2005. The Veteran appealed the June 2016 Board decision to the Court. In a June 2017 order, which incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the June 2016 Board decision. In March 2019, June 2020, May 2021, and August 2021, Veterans' Law Judges not the undersigned Remanded the appeal. Lastly, before adjudicating the claim below, the Board finds it important to note that the Veteran has been in receipt of a total rating based on individual unemployability (TDIU) at all times since November 8, 2009. The concerns raised by the November 2010 memorandum decision and the June 2017 JMR as well as post-Remand compliance As to the concerns raised by the November 2010 memorandum decision and the June 2017 JMR as well as post-Remand compliance, the Board finds that the post-Remand medical opinions address the Court's concerns and complied with the Remands because they, among other things, addressed the functional effect of the Veteran's left ear hearing loss prior to January 11, 2005, as required by Martinak v. Nicholson, 21 Vet. App. 447 (2007) (i.e., in substance, they recorded the Veteran's claim that his hearing loss caused him to have trouble hearing people talk) (see VA examinations dated November 2010, February 2011, August 2013, November 2015, November 2017, and September 2021) as well as whether the Veteran's left ear hearing loss caused dizziness prior to January 11, 2005 (see VA examination dated in September 2021). See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). Moreover, the Board finds that these VA examinations and opinions are the most probative evidence of the record for the following reasons: they were provided after a review of the record on appeal and/or an examination of the appellant, they considered and/or cited to the results of the examinations as well as the appellant's treatment records; they considered and discussed the appellant's competent and credible lay claims regarding his observable symptomatology; the opinions/conclusions are supported by medical reasoning and citation to controlling medical literature; as well as because they are not contradicted by any other medical evidence of record. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In this regard, because the September 2021 VA examiner opined that the Veteran's dizziness prior to January 11, 2005, is not related to his service-connected left ear hearing loss and because the Board finds this opinion the most probative evidence of record, including because it is more probative than the lay claims to the contrary from the Veteran because the VA examiner has greater medical training (see Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data)), the Board finds that it need not discuss below the adverse functional impact, if any, that dizziness had on the appellant's ability to function when discussing below whether he met the criteria for an extraschedular rating prior to January 11, 2005. See Owens, supra. Also, as to the concerns raised by the November 2010 memorandum decision regarding the Board not discussing its reasons for not referring the claim for an extraschedular consideration, as noted above, in February 2016 the Director, Compensation and Pension issued a decision in which it denied the claim for a compensable extraschedular rating for left ear hearing loss for the period prior to January 11, 2005. Moreover, the below decision discusses in detail why the criteria for such a compensable extraschedular rating for left ear hearing loss for the period prior to January 11, 2005, have not been met. Therefore, the Board finds that no further discussion of this concern is needed at this time. The Board also finds that the post-Remand development substantially complied with the Remand because all identified and available VA and private treatment records were obtained and associated with the claims file. See 38 U.S.C. § 5103A(b); Stegall, supra. Therefore, the Board finds that further delay by remanding the appeal to obtain another opinion or to obtain additional medical records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further development or analysis does not serve the interests of the appellant or the Veterans' Administration (VA). The Claim In order to address the concerns raised in the November 2010 Court decision, the Board must consider if the Veteran meets the criteria for an extraschedular evaluation for his left ear hearing loss pursuant to 38 C.F.R. § 3.321(b) at any time prior to January 11, 2005. In this regard, the Court has under set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. The requirement of an exceptional disability picture means that initially there must be a comparison between the level of severity and symptomatology of the appellant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. If the criteria reasonably describe the appellant's disability level and symptomatology, then the appellant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. Id. If the criteria do not reasonably describe the appellant's disability level and symptomatology, a determination must be made whether the appellant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). In this regard, "[t]he governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors 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)(1); Shipwash v. Brown, 8 Vet. App. 218 (1995). (Emphasis Added). Furthermore, the Court in Doucette v. Shulkin, 28 Vet. App. 366 (2017) held that an extraschedular rating was not warranted if the manifestations of the disability are contemplated by the rating criteria. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). Initially, the Board notes that it cannot in the first instance grant an extraschedular rating but must refer the Veteran's claim to the Director of Compensation Service (Director) for this special consideration when the issue is raised either by the Veteran or by the evidence of record. See Thun, 22 Vet. App. 111; Barringer v. Peake, 22 Vet. App. 242 (2008). In this regard, in February 2016 the Director issued a decision in which it denied the claim for a compensable extraschedular rating for left ear hearing loss for the period prior to January 11, 2005. Specifically, the Director opined as follows: The evidence when considered in totality does not show that an extra-schedular evaluation is warranted pursuant to 38 C.F.R. § 3.321(b)(1). The rating schedule provides ample opportunity to assess a higher evaluation under 38 C.F.R. § 4.85 and 4.86 pursuant to 38 U.S.C. § 1155. The rating schedule recognizes exceptional patterns of hearing. In this case, all of the audiometric findings fall within schedular criteria without any evidence of impracticality. Because the facts of the case fail to establish any extra-schedular entitlement pursuant to Thun v. Peake showing no frequent hospitalizations, marked interference with employment or unusual disability picture, no extra-schedular evaluation is warranted. Tellingly, while the Director's extraschedular decision may serve to inform the Board's review, the Director's decision is not evidence and is reviewable by the Board on a de novo basis. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). Therefore, the Board may now adjudicate on the merits the extraschedular claim. Initially, and as discussed above, the Board finds that the below discussion need not consider dizziness because the preponderance of the evidence shows that dizziness is not due to the service-connected left ear hearing loss despite the Veteran's and/or his representative's claims to the contrary. See Owens, supra. Next, the Board has reviewed all the evidence relating to the Veteran's service-connected left ear hearing loss and also finds that the schedular criteria adequately encompassed the severity of his disability at all times prior to January 11, 2005, even though that rating is a noncompensable rating. See Owens, supra. Therefore, the Board finds that the criteria for a compensable extraschedular rating for left ear hearing loss prior to January 11, 2005, have not been met. Id. The Board has reached this conclusion because, with respect to the first prong of Thun, supra, it finds that the preponderance of the evidence shows that the Veteran does not have such an exceptional disability picture that the available schedular evaluation for his left ear hearing loss is not inadequate for the period prior to January 11, 2005. Id. In this regard, a comparison between the Veteran's competent and credible lay reports of his adverse left ear hearing loss symptomatology (i.e., difficulty hearing people talk), his wife and friend's January 2014 competent and credible lay reports of his adverse left ear hearing loss symptomatology (i.e., difficulty hearing them talk), the level of severity and symptomatology of the left ear hearing loss as reported by the examiner (see VA examination dated in April 2004 at which time the Veteran only met the criteria for as noncompensable rating), and the level of severity and symptomatology of the left ear hearing loss as reported by his treatment records (i.e., difficulty hearing people talk) with the established criteria (i.e., 38 C.F.R. § 4.85, Diagnostic Code 6100) shows that the rating criteria squarely contemplated his disability level and symptomatology and compensates him for it because it compensate him for difficulty hearing in the left ear at all times prior to January 11, 2005, even though it rated the disability as noncompensable. See 38 C.F.R. § 4.1; Owens, supra. The Board also finds it significant that the rating schedule recognizes exceptional patterns of hearing loss and his left ear hearing loss did not meet that criteria for a compensable rating even under these criteria. See 38 C.F.R. § 4.86. Moreover, and as noted in November 2010 Court's decision, while the April 2004 VA examiner did not address the functional effect of the Veteran's left ear hearing loss, the Board nonetheless finds that the subsequent November 2010, February 2011, August 2013, November 2015, November 2017, and September 2021 VA examiners in accordance with Martinak, supra, recorded in the Veteran's own words the functional impact of his left ear hearing loss; which problems boils down to his reports that it caused him difficulty hearing people talk. Tellingly, this adverse symptomatology is specially considered and compensated for by the rating criteria. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. Next, as to the functional effect of the Veteran's left ear hearing loss prior to January 11, 2005, the Board finds it significant that that the November 2015 VA examiner opined as follows: ... with binaural amplification, use of visual and contextual cues, and ADA accommodations as appropriate, Veteran would be expected to be able to obtain and/or maintain gainful employment and to be employable in a physical or sedentary capacity in non-adverse listening environments. This applies to both the period of 2001-2005 through the most recent testing in 2013... See Owens, supra. Lastly, the Board has not overlooked the fact that the earlier VA examiners in November 2010, February 2011, and August 2013 as well as subsequent VA examiners in November 2017 and September 2021 opined regarding the Veteran's hearing loss causing him problems at work. However, the Board does not find these other statements probative because they are either not limited in scope to the pre-January 11, 2005, time period and/or to problems caused solely by the service-connected left ear hearing loss. See Owens, supra. Having "some problems at work" does not always lead to a compensable evaluation. The "problems" may not be enough. Therefore, the Board finds that the preponderance of the evidence shows that the Veteran's adverse left ear hearing loss pathology does not meet the first Thun, supra, criteria for the period prior to January 11, 2005. Id. Moreover, a review of the record on appeal shows that the Veteran's left ear hearing loss, acting alone, does not show it not caused marked interference with employment or frequent periods of hospitalization for the period prior to January 11, 2005. See, e.g., VA examinations dated in November 2010, February 2011, August 2013, November 2015, November 2017, and September 2021; Also see Colvin, supra. In fact, a review of the record on appeal does not reveal an instance of lost employment and/or a period of hospitalization due solely to the service-connected left ear hearing loss. Id. Therefore, the Board finds that the preponderance of the evidence also shows that the Veteran's adverse left ear hearing loss pathology does not meet the second Thun, supra, criteria for the period prior to January 11, 2005. Next, the Board finds that it need not discuss herein the third Thun, supra, criteria because it would sever no useful purpose because, as discussed above, the Veteran has neither met the first or second Thun, supra, criteria, for the period prior to January 11, 2005, and the failure to meet even one of the three Thun, supra, criteria is enough to finds that he does not meet the criteria for an extraschedular rating for the period prior to January 11, 2005. See 38 C.F.R. § 3.321(b)(1). Based on a review of the evidence, this issue have been, for lack of a better word, "over-litigated." In this regard, while the Veteran's left ear hearing loss may hav bothered him for the period prior to January 11, 2005, it is important for the Veteran to understand that the only question in this case is the degree of the problem and the rating criteria specifically considered and provided an appropriate level of compensation for the degree of his hearing impairment. See 38 C.F.R. §§ 3.321(b)(1), 4.85, 4.86, Diagnostic Code 6100. A disability that caused some problems is not always a problem that is compensable. In reaching the above conclusion, the Board has also not overlooked the claims from the Veteran, his wife, and friend regarding the problems caused by his left ear hearing loss. See Davidson, supra. However, the Board finds the VA examiners opinions as to the Veteran's adverse symptomatology more probative than the lay claims from the appellant, his wife, and friend to the contrary even though his symptomatology is observable by lay persons because the examiners have greater medical training. See Black, supra. Given the above record, the Board finds that the claims file does not show such an exceptional disability picture such that a compensable extraschedular evaluation for the Veteran's left ear hearing loss is warranted under 38 C.F.R. § 3.321(b)(1). A comparison between the level of severity and symptomatology of the Veteran's disability with the evidence found in the claims file shows that the noncompensable schedular rating already assigned under 38 C.F.R. § 4.85, Diagnostic Code 6100 reasonably describes his disability level and symptomatology at all times prior to January 11, 2005. Stated another way, the Board finds that nothing in the record shows that the Veteran's left ear hearing loss caused marked interference with employment or frequent periods of hospitalization beyond that which is already contemplated by the noncompensable schedular rating already assigned his left ear hearing loss under Diagnostic Code 6100 at all times prior to January 11, 2005. See Shipwash, supra; Doucette, supra. The Board has reviewed this case in detail. Therefore, the Board finds that the criteria for the award of a compensable extraschedular evaluation for the Veteran's service-connected left ear hearing loss under 38 C.F.R. § 3.321(b)(1) have not been met at all times prior to January 11, 2005, and the claim is denied. See Thun, 22 Vet. App. 111; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching the above conclusion, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.