Citation Nr: 21072264 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 14-30 554 DATE: December 2, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss, to include extraschedular consideration, is denied. REMANDED Entitlement to service connection for a disorder manifested by episodic dizziness is remanded. FINDINGS OF FACT 1. The objective medical evidence does not show that the Veteran's service-connected bilateral hearing loss warrants a compensable rating. 2. The rating criteria for hearing loss contemplates the functional effects of difficulty hearing and understanding speech. The preponderance of the evidence is against finding that the Veteran's bilateral hearing loss disability manifested with functional impairment not contemplated by the schedular rating criteria. 3. The evidence is insufficient to show that the symptoms of the Veteran's bilateral hearing loss have demonstrated an exceptional or unusual disability picture that has caused marked interference with his employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss disability, to include extraschedular consideration are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.383, 3.385, 4.85-4.87, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1974 to March 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal in June 2019 and March 2021 for further development. Entitlement to an initial compensable rating for bilateral hearing loss Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's service-connected bilateral hearing loss has been evaluated with a noncompensable rating throughout the appeal period under the provisions of Diagnostic Code 6100. See 38 C.F.R. § 4.85. The rating schedule establishes eleven auditory acuity levels designated from "I" for essentially normal acuity through "XI" for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. Specifically, in determining ratings for hearing loss under 38 C.F.R. § 4.85, reference is first made to Table VI of the rating schedule to find the appropriate Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist, including a controlled speech discrimination test, using the Maryland Consonant-Vowel Nucleus-Consonant (CNC) Test, and based on a combination of the percent of speech discrimination and the Puretone threshold average, which is the sum of the Puretone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. 38 C.F.R. § 4.85. Table VII is then used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Where they intersect on the graph provided will be the number representing the percentage of hearing loss. As an alternative, when the Puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, the rating specialist will determine the Roman numeral designation for hearing impairment 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 dB or less at 1000 Hz and 70 dB or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board emphasizes that the Puretone threshold at 500 Hz is not used in determining the evaluation and will not be included in the threshold averages. It is used only in determining whether or not a ratable hearing loss exists. Turning to the record, the Veteran was afforded a VA examination in April 2011 to determine the severity of his bilateral hearing loss. At that time, pure tone thresholds, in decibels, were as follows: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 20 15 25 65 70 Left 15 20 25 40 50 The Maryland CNC Test revealed speech recognition ability of 84 percent in the right ear and of 80 in the left ear. The average decibel loss in the right ear was 43.75 and the average decibel loss in the left ear was 33.75. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment is "II" for the right ear and "III" for the left ear. See 38 C.F.R. § 4.86(a). Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. The Veteran was afforded another VA examination in November 2011 to determine the severity of his bilateral hearing loss. At that time, pure tone thresholds, in decibels, were as follows: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 20 25 35 65 70 Left 15 20 25 40 50 The Maryland CNC Test revealed speech recognition ability of 82 percent in the right ear and of 84 in the left ear. The average decibel loss in the right ear was 49 and the average decibel loss in the left ear was 34. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment is "III" for the right ear and "II" for the left ear. See 38 C.F.R. § 4.86(a). Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. The Veteran was afforded a VA examination in June 2021 to determine the severity of his bilateral hearing loss. At that time, pure tone thresholds, in decibels, were as follows: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 30 50 55 70 70 Left 15 35 30 40 55 The Maryland CNC Test revealed speech recognition ability of 68 percent in the right ear and of 96 in the left ear. The average decibel loss in the right ear was 61.25 and the average decibel loss in the left ear is 40. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment is "V" for the right ear and "I" for the left ear. See 38 C.F.R. § 4.86(a). Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. The Board notes that an April 2016 private audiology report was obtained pursuant to the March 2021 Board remand. However, it is unclear from the private records obtained whether the Maryland CNC word list was utilized for word recognition testing and thus, whether the results are adequate for rating purposes. However, the Board notes that, assuming the Maryland CNC word list was utilized, the April 2016 private audiology testing exhibits results consistent with a noncompensable evaluation under Diagnostic Code 6100 pursuant to C.F.R. § 4.86(a). There is no medical evidence of record indicating that a compensable evaluation was warranted at any time during the appeal period. The Board has considered the Veteran's lay assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann, 3 Vet. App. 345; Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. The Board finds that there is no audiological evidence of record to support a compensable evaluation for the Veteran's bilateral hearing loss on a schedular basis. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran also contends that his bilateral hearing loss warrants an increased evaluation on an extraschedular basis as the current severity of his service-connected hearing disability is not adequately compensated under VA's Rating Schedule as set forth above. Generally, disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria set forth in VA's Rating Schedule. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, where schedular evaluations under the VA Rating Schedule are found to be inadequate, extraschedular evaluations may be awarded pursuant to referral of such claim to the Under Secretary for Benefits or the Director of Compensation Service for consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. See 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). As the Veteran and his representative have asserted that VA schedular rating criteria for hearing loss do not adequately address the severity of his service-connected hearing disability, the Board must consider whether an extraschedular evaluation is warranted in this case. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In contrast to the schedular criteria for evaluating hearing loss, extraschedular provisions for hearing loss do not rely exclusively on objective test results to determine whether referral for an extraschedular rating is warranted. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, the Board cannot assign an extraschedular rating in the first instance; rather, the Board may consider whether a remand for referral to the Under Secretary for Benefits or Director of Compensation Service (Director) is necessary. See 38 C.F.R. § 3.321 (b)(1). In determining whether an extraschedular evaluation is warranted, the Board must first consider whether the evidence of record presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate, as the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the service-connected disability on appeal. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the schedular rating criteria are found to be inadequate, the Board must next determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. See id. at 115-16. Where both of these two elements have been met, the claim at issue must be referred for consideration of an extraschedular rating; otherwise, the schedular evaluation shall be deemed adequate, and no referral is required. See 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular criteria applicable to the Veteran's service-connected hearing loss adequately contemplates its severity and symptomatology, as it references objective measurements of pure tone thresholds and speech discrimination. The Board notes that the Veteran has made additional complaints describing dizziness, vertigo, and equilibrium issues. However, those complaints were found to be separate and distinct from the Veteran's bilateral hearing loss and are discussed in the remand portion of this decision. In addition, the Veteran is separately service connected for tinnitus. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned evaluations with the established criteria found in the Rating Schedule shows that the rating criteria reasonably describe his disability level and symptomatology. In this regard, the Board finds that the Veteran's reports of his difficulty hearing and understanding speech constitute symptomatology and impairment contemplated in the rating criteria for hearing loss. Indeed, the United States Court of Appeals for Veterans Claims (Court) has held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech, as these are the effects that VA's audiometric tests are designed to measure. The Court further indicated that "when 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." See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Accordingly, based on all of the foregoing, the Board finds that the preponderance of the evidence is against the claim of entitlement to an increased rating for service-connected bilateral hearing loss on an extraschedular basis, and that claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2018). REASONS FOR REMAND Entitlement to service connection for a disorder manifested by episodic dizziness is remanded. The Veteran asserts that he has a disorder that is manifested as chronic episodic dizziness. He asserts that this disorder began in service and has continued since. While further delay is regrettable, this issue is remanded because there has not been substantial compliance with the Board's August 2021 remand directives. Specifically, the remand required an addendum opinion be provided by the VA examiner who performed the November 2011 VA examination and offered the June 2014 addendum opinion, or by "an equally knowledgeable medical professional." The remand directives explicitly stated the "RO is advised that the former VA examiner was an audiologist as well as the Chief of ENT. If an opinion cannot be obtained from an equally knowledgeable medical professional, the reason for such should be indicated." An addendum opinion was obtained in August 2021 that was provided by general practice physician specializing in obstetrics and gynecology. The Board acknowledges the July 2021 correspondence from the VA examiner who provided the November 2011 and June 2014 opinions stating that he could not provide another opinion due to time constraints. However, it is unclear to the Board why an opinion was not obtained from an audiologist or an ear, nose, and throat (ENT) specialist with equal expertise as instructed in the August 2021 remand. There is no indication in the record as to why an examiner specializing in obstetrics and gynecology provided the opinion, and the Board does not find that this examiner is an equally knowledgeable medical professional in compliance with the remand directives. Another addendum opinion is required. See Stegall v. West, 11Vet. App. 268, 271 (1998). The Board also finds that a secondary theory of entitlement to service connection has been reasonably raised by the record, and thus, the addendum opinion must address whether any disorder manifested by episodic dizziness is proximately due to, or aggravated by, the Veteran's service-connected disabilities including tinnitus and bilateral hearing loss. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from a medical professional who is equally as knowledgeable as the VA examiner who provided November 2011 and the June 2014 VA medical opinions. The RO is advised that the former VA examiner was an audiologist as well as the Chief of ENT. If an opinion cannot be obtained from an equally knowledgeable medical professional, the reason for such should be indicated. Moreover, if an examiner other than an audiologist or an ear, nose, and throat (ENT) specialist is utilized, the reason for such should be indicated. The examiner should indicate all diagnoses associated with the Veteran's episodic dizziness and provide the following opinions: (a.) Is it as likely as not (50 percent or greater probability) that any diagnosed disorder manifested by episodic dizziness was incurred in service? The examiner must specifically address the complaints of dizziness and related symptomatology noted throughout the Veterans service treatment records (STRs) as well as the Veteran's competent lay statements asserting continuity of symptomatology since service. (b.) Is it as likely as not (50 percent or greater probability) that any diagnosed disorder manifested by episodic dizziness is proximately due to a service-connected disability, to include tinnitus and bilateral hearing loss? (c.) Is it as likely as not (50 percent or greater probability) that any diagnosed disorder manifested by episodic dizziness is aggravated beyond its natural progression due to a service-connected disability, to include tinnitus and bilateral hearing loss? A well-reasoned rationale must be provided for all opinions. If the examiner is unable to provide the required opinion, he or she should explain why. If the medical professional cannot provide an opinion without resorting to mere speculation, a complete explanation as to why this is so should be provided. If the inability to provide a more definitive opinion is the result of a need for additional information, the additional information that is needed should be identified. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Sneeringer, 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.