Citation Nr: 21072448 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-29 130 DATE: December 3, 2021 ORDER Entitlement to a rating higher than 10 percent for bilateral hearing loss, to include on an extraschedular basis is denied. FINDINGS OF FACT 1. Throughout the period on appeal, audiometric testing revealed, at worst earing level IV in the left ear and level II in the right ear hearing impairment. 2. An extraschedular rating for the Veteran's service-connected bilateral hearing loss is not warranted for the Veteran's allegation of social deficiencies/impairment caused by his service-connected bilateral hearing loss, as the Veteran is already rated (compensated) for this symptom as part of his service-connected psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for rating higher than 10 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had served on active duty from June 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2019 Board decision. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 Memorandum Decision, the Court set aside the Board's decision and remanded the claim to the Board for further proceedings consistent with the decision. Specifically, the Court held that the Board had erred in failing to provide adequate reasons and bases for its finding that referral of the hearing loss disability for extraschedular consideration was not warranted. Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The Veteran contends that his hearing loss warrants a rating higher than 10 percent for the entire period on appeal. For the reasons discussed below, the Board finds that the weight of the evidence is against a higher disability rating for bilateral hearing loss. The assignment of a disability rating for a hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. 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. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85. Thus, any examination for hearing impairment that does not contain Maryland CNC testing is, by law, inadequate for rating purposes unless the examiner certifies that 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. 38 C.F.R. § 4.85(c). The Veteran's hearing loss has been evaluated under 38 C.F.R. § 4.85, DC 6100. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. In addition to the hearing loss criteria above, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa [38 C.F.R. § 4.85], whichever results in the higher numeral.38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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 Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Initially, the Board notes that an October 2017 private audiological examination is associated with the record; however, the examination does not contain Maryland CNC testing. Therefore, it is, by law, inadequate for rating purposes. In January 2018, the Veteran was afforded an audiological examination. During the examination, the Veteran reported difficulty hearing people when they speak. The January 2018 VA examination reveals that Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels were as follows: HERTZ 1000 2000 3000 4000 Average Speech LEFT 25 75 70 65 59 88 RIGHT 20 50 55 60 46 88 Evaluating each ear separately, the left ear shows the puretone threshold is 25 decibels at 1000 Hertz, and 75 decibels at 2000 Hertz. Under 38 C.F.R. § 4.86(b), 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 Roman numeral. This equates to auditory acuity numeric designations of Level IV in the left ear (using Table VIa) and Level II in the right ear. Under Table VII of 38 C.F.R. § 4.85, hearing impairment manifested by Level IV hearing acuity in the left ear and Level II hearing acuity in the right ear comport with the criteria for a non-compensable rating. Although the rating schedule indicates that the Veteran's bilateral hearing loss meets the criteria for a noncompensable rating, a January 2018 rating decision issued by the Regional Office (RO) granted service connection for the Veteran's bilateral hearing loss and assigned an evaluation of 10 percent effective October 20, 2017. After a review of all of the evidence, lay and medical, the Board finds that the weight of the evidence is against a higher schedular disability rating for the entire period on appeal. The Veteran's level of hearing loss disability, as reflected by audiometric test scores and speech recognition test scores, does not establish entitlement to a higher schedular disability rating for bilateral hearing loss. Pursuant to the March 2021 Court decision, the Board has not overlooked the contentions put forth by the Veteran regarding the impact of his service-connected bilateral hearing loss disability on his daily life, to include social impairment/isolation. The Board acknowledges the Veteran has requested extraschedular consideration for his hearing loss disability. For the reasons discussed below, the Board finds that referral of the Veteran's claim for extraschedular consideration under the provision of 38 C.F.R. § 3.321(b) is not warranted in this case. While the Board cannot assign an extraschedular rating for a disability in the first instance, the Board must adjudicate whether to refer a case to the VA Director, Compensation and Pension Service for an extraschedular evaluation when the issue is raised by the claimant or reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In determining whether referral is warranted, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the rating criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Id. If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-16. If either the first or second Thun element is not met, then referral for extraschedular consideration is not appropriate. The Court has clarified the process for determining whether a veteran is entitled to an extraschedular rating. Recently, in Long v. Wilkie, 33 Vet. App. 167 (2020), the Court stated: "To warrant referral for extraschedular consideration, a disability must be so exceptional or unusual that it renders application of the regular schedular ratings impractical. 38 C.F.R. § 3.321 (b)(1) (2020). By its very nature, an "exceptional" or "unusual" disability defies easy classification, and so it has been an enduring challenge to fashion a standard sufficiently flexible to allow for individualized consideration of truly unusual impairments but not so expansive as to effectively discard the "exceptionality" requirement. In Thun v. Peake, 22 Vet. App. 111, 115 (2008), we spelled out a general standard for determining whether a veteran's disability is exceptional or unusual under § 3.321(b)(1). Known as Thun's "first step," it requires adjudicators to compare "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." Id. If "the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule" and the schedular evaluation is adequate and "no referral is required." Id. The Court reiterated that the first Thun step does not involve a mechanical test; instead, the analysis focuses on "whether the veteran's disability picture as a whole that is, the full symptomatology presents an impairment that is so exceptional that the rating schedule is not capable of assessing it in the first instance. This inquiry is not reducible to a mere comparison between symptoms and the diagnostic criteria but requires a reasoned assessment of both the veteran's full disability picture and the capacity of the rating schedule to evaluate such." Id. at 173. As the first Thun step focuses on the ability of the rating schedule to evaluate any impairment manifested by a veteran's symptomatology, "extraschedular consideration is appropriate only after the agency has exhausted all other tools for a disability rating, whether direct, secondary, or analogous ratings." Id. at 175, citing Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). With regard to the Veteran's repeated reports of difficulty hearing people and objects, e.g., the television, the Court has held that the schedular criteria for rating hearing loss contemplates the functional effects of an inability to hear or understand speech or to hear other sounds in various contexts. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). In this regard, the Board finds that the functional impacts of the Veteran's bilateral hearing loss disability described above are contemplated by the rating criteria. That stated, the Board highlights the Veteran's statement that his hearing loss causes a feeling of isolation. The Court in Doucette suggested that other functional effects, such as "pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating" may not be contemplated by the rating criteria for hearing loss. See Doucette, 28 Vet. App. at 371 (emphasis added). The Veteran's representative contends that functional effects of the Veteran's bilateral hearing loss disability are not contemplated by the rating criteria for hearing loss and warrant referral for extraschedular consideration. While the Board recognizes that social isolation is not explicitly identified as part of the rating criteria used for rating hearing loss, social impairment is in fact contemplated elsewhere in the rating schedule, under the general rating formula for mental disorders. See 38 C.F.R. § 4.130. Thus, if actually related to hearing loss, and rises to the level of a psychiatric disorder, the Veteran may be entitled to a separate rating for social isolation under the rating schedule without extraschedular referral. See Morgan v. Wilkie, 31 Vet. App. 162 (2019) (VA's duty to maximize benefits requires it to exhaust all schedular alternatives for rating a disability before engaging in extraschedular analysis). In this case, the Board notes that in a January 2018 rating decision, the RO granted service connection for PTSD and assigned a 30 percent disability rating, effective October 20, 2017. The record contains a private 2017 psychological examination, in which the examiner noted, "his diminished hearing ability also contributes to his proclivity to isolate himself from others and finds social interactions with others to be highly stressful." The record also contains a January 2018 VA psychiatric examination. During this examination, the Veteran complained that his mental health disability resulted in impairment in functionality as his PTSD symptoms caused difficulty connecting with others and social isolation. He reported that in Spring 2017, he saw a psychologist because he does not "have friends." The disability rating assigned for the Veteran's service-connected PTSD in the January 2018 rating decision appropriately compensates the Veteran for social and occupational impairment manifested by social deficiencies/isolation, regardless of whether the symptom is caused by the service-connected psychiatric disability or the hearing loss, as all psychiatric symptoms have been determined to be undifferentiated. Having considered the Veteran's descriptions as to how his hearing loss affects his daily life, the Board concludes that the rating schedule is adequate to rate the impairments the Veteran contends are caused by his hearing loss disability, to include social isolation. As such, were the Board to also grant an extraschedular hearing loss rating based upon the symptom (not even a separate diagnosis) of "social isolation," improper pyramiding of compensation would result. 38 C.F.R. § 4.14. Therefore, the Board finds that the question of an extraschedular disability rating for bilateral hearing loss in the form of social isolation has been rendered moot by the grant of service connection for the acquired psychiatric disorder of PTSD, and the compensation/rating awarded in the January 2018 rating decision. (Continued on the next page) In sum, the Veteran's claim for an extraschedular rating for his service-connected bilateral hearing loss based on the symptoms of social impairment/isolation must be denied as exceptionality has not been shown. The first Thun step has not been satisfied, as the Veteran's reports of social isolation, alleged as symptoms of his service-connected bilateral hearing loss, and simultaneously reported as symptoms of service-connected PTSD have been addressed using the conventional schedular rating devices. As noted above, the Veteran's social impairment has been adequately compensated under the initial ratings assigned for his service-connected acquired psychiatric disorder of PTSD. The fact remains that the social impairment/isolation itself is contemplated by the rating schedule. There is nothing exceptional or unusual about the Veteran's disability picture that renders the schedule inadequate. As such, referral for extraschedular consideration under the provisions of 38 C.F.R. § 3.321(b) is not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hemphill 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.