Citation Nr: 21071858 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 19-06 959 DATE: December 1, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period, the Veteran's bilateral hearing loss was productive of no worse than Level XI hearing impairment in the right ear and Level II hearing impairment in the left ear. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a disability rating in excess of 10 percent for service-connected bilateral hearing loss. The Veteran filed a notice of disagreement (NOD) in August 2018. A statement of the case (SOC) was issued in January 2019. He perfected a timely appeal in February 2019. In November 2020, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In an August 2021 Board decision, the claim was remanded for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was issued in October 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss. Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth at 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I, for essentially normal acuity, through Level XI, for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85(d). Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In cases where impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds of the frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or greater. The second is where pure tone thresholds are 30 decibels or less at frequencies of 1000 Hz and below, and are 70 decibels or more at 2000 Hz. See 38 C.F.R. § 4.86. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. In general, when 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). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claim. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Board has considered all evidence of record as it bears on the issue before it. See 38 U.S.C. § 7104(a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case"). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's appeal. As indicated above, the Veteran is assigned a 10 percent disability rating for bilateral hearing loss throughout the appeal period. He has asserted that a higher disability rating is warranted. As will be explained below, the resolution of this issue involves determining the levels of hearing acuity. The Veteran was afforded a VA audiology examination in May 2017 at which time the examiner noted the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 105 105 105 105 105 LEFT 15 20 45 45 31 Average pure tone threshold was 105 decibels in the right ear and 31 in the left ear. The examiner reported that he was unable to obtain a speech recognition score in the right ear because it "is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of pure tone average and word recognition scores inappropriate." Speech recognition ability in the left ear was 92 percent. The examiner stated that the Veteran's bilateral hearing loss does impact the ordinary conditions of his daily life, including his ability to work. The examiner documented the Veteran's statements: "I just can't hear. I have so much sinus congestion my left ear is thumping. I feel like there is water in my ear. I have to turn the television up." Because the VA examiner indicated that the use of a speech recognition score was inappropriate for the right ear, the Board has applied Table VIA. 38 C.F.R. § 4.85(c). As such, the May 2017 examination findings translate to level XI hearing impairment in the right ear and level I in the left ear. 38 C.F.R. § 4.85, Tables VI and VIA. Applying Table VII, DC 6100, this equates to a 10 percent rating. The Veteran was afforded a VA audiology examination in October 2017. The examiner indicated that the "Veteran states he can 'hardly hear,' says 'what?' a lot, people have to repeat themselves four to five times, and have to be close to him in order to hear." The examiner did not report pure tone threshold scores as he deemed the scores obtained in this examination to be unreliable and inconsistent. The examiner explained that the results obtained "were considered unreliable and no adequate for rating purposes. Pure tone thresholds were considered exaggerated and inconsistent with admitted speech reception thresholds despite frequent reinstructions." The examiner further indicated that "[c]ommunication with the Veteran was not consistent with the severity of hearing loss presented today. Additionally, today's results are not consistent with testing completed five months ago." A January 2019 VA audiology examination documented the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 105 105 105 105 105 LEFT 30 40 70 75 54 Average pure tone threshold was 105 decibels in the right ear and 54 in the left ear. The examiner did not report a word recognition score in the right ear; he assigned a word recognition score of 84 percent in the left ear. The examiner stated that the Veteran's bilateral hearing loss does impact the ordinary conditions of his daily life, including his ability to work. The examiner noted the Veteran's report that he experiences "difficulty hearing others when they are not facing him and [difficulty] understanding speech when watering television." As the January 2019 VA examiner did not assign a word recognition score in the right ear, the Board has therefore applied Table VIA. 38 C.F.R. § 4.85(c). The examination findings translate to level XI hearing impairment in the right ear and level II hearing in the left ear. 38 C.F.R. § 4.85, Tables VI and Table VIA. Applying Table VII, DC 6100, this equates to a 10 percent rating. A VA ear conditions examination was obtained in April 2019 at which time the examiner diagnosed the Veteran with balance disorder/vertigo. The examiner noted the Veteran's statement, "when people talk to him, he cannot hear anything they are saying unless he gets right up to their mouths." The Veteran was service-connected for balance disorder/vertigo in a May 2019 rating decision; a 10 percent disability rating was assigned. At a November 2020 Board hearing, the Veteran testified that his bilateral hearing loss is progressively worsening. He further endorsed earaches and popping in the left ear. Pursuant to the August 2021 Board Remand, the Veteran was afforded a VA audiology examination in October 2021 at which time the examiner documented the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 105 105 105 105 105 LEFT 35 45 60 65 51 Average pure tone threshold was 105 decibels in the right ear and 51 in the left ear. The October 2021 examiner reported that he was unable to obtain a speech recognition score in the right ear because it "is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of pure tone average and word recognition scores inappropriate." Speech recognition ability in the left ear was 88 percent. The examiner stated that the Veteran's bilateral hearing loss does impact the ordinary conditions of his daily life, including his ability to work. The examiner explained that the Veteran indicates he has difficulty making out words and experiences frustration because he must ask others to repeat themselves. As the October 2021 VA examiner indicated that the use of a speech recognition score was inappropriate for the right ear, the Board has therefore applied Table VIA. 38 C.F.R. § 4.85(c). These examination findings translate to level XI hearing impairment in the right ear and level II hearing in the left ear. 38 C.F.R. § 4.85, Tables VI and VIA. Applying Table VII, DC 6100, this equates to a 10 percent rating. The October 2021 VA examiner noted the Veteran's report of experiencing ear pressure and pain in the left ear. The examiner indicated that the Veteran is under the care of an ear, nose, and throat (ENT) doctor for these symptoms. The examiner indicated that the Veteran's ear popping and pain are more likely related to ENT care for chronic rhino and sinusitis than to his sensorineural hearing loss. Accordingly, the medical evidence of record demonstrates that throughout the appeal period, the Veteran's bilateral hearing loss warrants a 10 percent rating, but no higher, pursuant to DC 6100. 38 C.F.R. § 4.85. There is no audiological evidence of record to support a disability rating in excess of 10 percent for the Veteran's bilateral hearing loss disability. The preponderance of the evidence is against the claim for an increased disability rating for bilateral hearing loss. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. The Board in no way discounts the difficulties that the Veteran experiences as a result of his service-connected bilateral hearing loss disability. In this regard, it must be emphasized that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent and valid audiology studies. See Lendenmann, 3. Vet. App. at 345. In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record presents no basis for assignment of a higher disability rating. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has 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 claimant'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. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. The Board finds that the rating criteria contemplate the Veteran's bilateral hearing loss disability. His hearing loss is manifested by decreased hearing acuity. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including his difficulty hearing and understanding speech. The Board notes that this conclusion is consistent with the Court's holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) ("[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"). The Veteran is separately service-connected for balance disorder/vertigo. See the rating decision dated May 2019. Moreover, as explained above, the October 2021 VA examiner specifically indicated that the Veteran's symptoms of ear pain and pressure are likely due to his nonservice connected rhinosinusitis. Thus, these symptoms are not considered in rating the service-connected hearing loss disability. Because the rating criteria reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the schedular evaluations now assigned are, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence does not show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.