Citation Nr: 21072765 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-11 831 DATE: December 6, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to December 17, 2019 and greater than 40 percent thereafter, is denied. Entitlement to service connection for an acquired psychiatric disability, secondary to bilateral hearing loss is granted. FINDINGS OF FACT 1. Prior to December 17, 2019, the Veteran's bilateral hearing loss has been manifested by audio acuity no worse than Level I for the right ear and Level VI for the left ear. 2. From December 17, 2019, the Veteran's bilateral hearing loss has been manifested by audio acuity no worse than Level V in the right ear and Level VII in the left ear. 3. The Veteran's acquired psychiatric disorder, to include generalized anxiety disorder was caused by his service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for bilateral hearing loss prior to December 17, 2019 and greater than 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321(b), 4.1, 4.3, 4.85, 4.86 Diagnostic Code (DC) 6100. 2. The criteria for entitlement to service connection for an acquired psychiatric disability, secondary to bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to February 1969.The claim was most recently before the Board in July 2021. The Board is satisfied that there has been substantial compliance with the September 2021 remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a compensable rating for bilateral hearing loss prior to December 17, 2019 and greater than 40 percent thereafter Whether service connection is warranted for a separately diagnosed psychiatric disability The Veteran is seeking a higher rating for his service-connected bilateral hearing loss. During the period on appeal, the Veteran argued that his service-connected hearing loss caused his anxiety. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 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. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. The rating criteria include an alternate method of rating exceptional patterns of hearing; when the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Table VIA, Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average, is used to determine a Roman numeral designation, I through XI, for hearing impairment based only on the puretone threshold average. 38 C.F.R. § 4.85(c). 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, or other reasons, or when indicated under the provisions of 38 C.F.R. § 4.86. The Veteran was given a VA audiological examination in May 2017. During the examination, the Veteran's puretone threshold, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 30 50 65 LEFT 40 65 70 75 The average purtone threshold in the right ear was 40, and the average puretone threshold in the left ear was 63. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and the examiner noted they could not test the Veteran's left ear. The examiner stated that this was because the use of the word recognition score was not appropriate because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate. The Veteran described the functional impact as effecting his ability to work. He also felt that his hearing has been deteriorating in the left ear. In a May 2017 response to clarify the statement regarding the speech discrimination score for the left ear, the examiner said they believe the description provided was specific and did not require clarification. Applying the results to Table VI for the findings yield a numeric designation of Level I in the right ear. Since speech recognition could not be tested in the left ear Table VIA is used which yield a numeric designation of Level V in the left ear; Entering the resulting bilateral numeric designation of Level I for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. The Veteran was given a VA audiological examination in March 2018. During the examination, the Veteran's puretone threshold, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 40 55 75 LEFT 50 70 75 85 The average purtone threshold in the right ear was 49, and the average puretone threshold in the left ear was 70. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 72 percent in the left ear. The Veteran described the functional impact as effecting his ability to work and that he often has to ask people to repeat themselves. The Veteran further reported that he listens to the TV loud and has difficulty hearing in noisy environments. Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level VII in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. In October 2019, the Veteran testified at his Board hearing. During the hearing, the Veteran stated that he can barely hear what is going on and can only understand someone talking to him if he is looking at them. The Veteran further testified that experiences stress and anxiety due to hearing loss. A December 2019 Hearing Loss Disability Benefits Questionnaire (DBQ) pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 45 65 75 LEFT 55 70 90 95 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 36 percent in the left ear. The Veteran described the functional impairment as "relies on the use of hearing aids." Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level IX in the left ear. Entering the resulting bilateral numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under DC 6100. The left ear shows an exceptional pattern of hearing impairment. Using Table VIA, based on puretone threshold average only for that ear, results in a numeric designation of VII; the designation under Table VI is higher. Pursuant to the Board's December 2019 remand, the Veteran was given a VA examination in February 2020. During the examination, the Veteran's puretone threshold, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 40 65 75 LEFT 70 75 85 100 The average purtone threshold in the right ear was 50, and the average puretone threshold in the left ear was 83. Speech audiometry revealed speech recognition ability of 70 percent in the right ear and the examiner noted they could not test the Veteran's left ear. The examiner did not provide an explanation as to why speech recognition in the left ear could not be tested or whether it was appropriate to use speech recognition testing for the left ear. However, in a November 2020 addendum opinion, the VA examiner explained that speech recognition in the left ear could not be tested because the Veteran's speech recognition threshold (SRT) was 75 decibels. Therefore, speech recognition testing could not be done at 30 to 40 decibels above the SRT as VA does not allow for word recognition testing to be done above 100 decibels. The Veteran described the functional impact of his hearing impairment as having to read lips in order to hear. The results show an exceptional pattern of hearing impairment in the Veteran's left ear, so either Table VI or Table VIA, whichever results in the higher numeral, is used to determine the designation. 38 C.F.R. § 4.86(a). Table VI results in a designation of V in the right ear; Table VIA, designation is III. Table VI cannot be used for the left ear because there is no speech recognition score; Table VIA, the designation is VII. Applying the rating criteria, numeric scores of Level V in the right ear and Level VII in the left ear provides for the assignment of a 30 percent rating under DC 6100. A December 2020 rating decision increased the rating for bilateral hearing loss to 40 percent, effective December 17, 2019, the date of receipt of the DBQ. Pursuant to the Board's January 2021 remand, the Veteran was given a VA audiological examination in February 2021. During the examination, the Veteran's puretone threshold, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 35 50 60 LEFT 55 60 70 70 The average purtone threshold in the right ear was 43, and the average puretone threshold in the left ear was 64. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. The Veteran described the functional impact as embarrassing because he has to ask people to repeat themselves and he is not able to understand what they are saying. Those findings will not be considered because the Board specifically found the examination inadequate in the July 2021 Board remand. Specifically, that the Veteran has never had a 100 percent speech recognition score in his left ear and the VA examiner did not explain why there was a dramatic improvement in left ear speech recognition. At the same time, the Board remanded for a medical opinion as to whether the Veteran's complaints of anxiety were additional symptoms not contemplated by the schedular ratings. No opinion was provided regarding the Veteran's anxiety complaints. Pursuant to the Board's July 2021 remand, the Veteran was given a VA audiological examination in August 2021. During the examination, the Veteran's puretone threshold, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 45 60 65 LEFT 60 75 80 85 The average purtone threshold in the right ear was 49, and the average puretone threshold in the left ear was 75. Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 26 percent in the left ear. The Veteran described the functional impact as having difficulty hearing in the left ear greater than right ear. Also, when people talk to him, they have to repeat themselves because he cannot hear what they are saying. No opinion was received pertaining to whether the Veteran's anxiety is a symptom not contemplated by the rating schedule for hearing loss. The results show an exceptional pattern of hearing impairment in the Veteran's left ear, so either Table VI or Table VIA, whichever results in the higher numeral, is used to determine the designation for the left ear. 38 C.F.R. § 4.86(a). Under Table VIA, the findings yield a numeric designation of Level VI in the left ear under DC 6100. Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level XI in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under DC 6100. Based on a review of the record, the Board concludes that under DC 6100, higher ratings for the Veteran's bilateral hearing loss are not warranted at any time during the appeal period. For the period prior to December 17, 2019, the Board finds that a compensable rating is not warranted. Audiometry results and speech recognition scores from the May 2017 and March 2018 VA examinations meet the criteria of a noncompensable rating under DC 6100. The criteria for a 10 percent rating are not more closely approximated. For the period from December 17, 2019, the Board finds that a rating in excess of 40 percent is not warranted. Even with consideration of the exceptional pattern of hearing impairment in the Veteran's left ear, audiometry results and speech recognition scores from the February 2020, January 2021 and July 2021 VA examinations correspond at most to a 30 percent rating under DC 6100. The criteria for a 50 percent rating are not more closely approximated. At October 2019 Board hearing, the Veteran testified that he also experiences anxiety because of his service-connected bilateral hearing loss disability. The Veteran alternatively requested that his bilateral hearing loss be evaluated on an extraschedular basis. Anxiety is not contemplated by the rating criteria under DC 6100. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected hearing loss disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Anxiety is not contemplated by the schedular rating for hearing loss under DC 6100. VA's duty to maximize benefits requires it first to exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered, inclusive of the availability of service connection for disability claimed secondary to the service-connected disability. Morgan v. Wilkie, 31 Vet. App. 162 (2019). Pursuant to the September 2021 remand the Veteran was given a VA psychological examination in October 2021 to obtain a medical opinion as to whether any of the claimed manifestations represent a diagnosed disability, separate from the hearing loss. The examiner responded on a DBQ and entered a detailed opinion in the portion of the DBQ that pertains to aggravation of a condition that existed prior to service. That theory is not at issue in this case and the examiner's use of particular section of the DBQ is not determinative. The opinion provider reviewed the Veteran's history, records and complaints related to anxiety and stress. The provider concluded that the Veteran did have a separately diagnosed psychiatric disability and it is less likely than not that the Veteran's anxiety was caused by his hearing issue because it "clearly existed" prior to 2007. The examiner then concluded that it was at least as likely as not that the Veteran's anxiety and stress are aggravated by his hearing loss. In the rationale, the examiner said the Veteran did not have clinical anxiety and stress when he first sought treatment in 2012, rather it began years later. The examiner also included references and discussion of medical literature. Affording the Veteran the benefit of the doubt, the Board concludes that his anxiety and depression were caused by his service-connected hearing loss. The August 2021 opinion includes a negative opinion on secondary causation but a positive opinion on aggravation. However, the Board finds the opinion has some inconsistencies. The basis for the negative opinion on causation is that his anxiety "clearly existed" prior to 2007, but rationale for aggravation was that the Veteran did not have clinical anxiety when he sought treatment in 2012; it developed later. The examiner did not explain the significance of 2007 or the reference to not having "clinical" anxiety until after 2012. In support of his opinion, the examiner cited to medical literature stating that some of the psychological disorders associated with tinnitus are anxiety, depressive disorders, hysteria, insomnia, anger, fear and despair. Researchers have found associations between tinnitus and anxiety disorders. Secondary service connection allows for service connection for any disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The August 2021 examiner identified the anxiety and stress as separate diagnosed disabilities and related the to the service-connected hearing loss. Thus, secondary service connection is warranted for an acquired psychiatric disability as a reasonably raised alternative to an extraschedular rating for the service-connected hearing loss. Morgan, 31 Vet. App. 162 (2019). VA examinations have provided adequate descriptions of the functional effects of the Veteran's hearing loss. Martinak v. Nicholson, 21 Vet. App. 447 (2007). His hearing loss disability has manifested in difficulty hearing or understanding speech and has been evaluated under the applicable diagnostic code that has specifically contemplated the level of occupational impairment caused by hearing loss disabilities. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, and as measured by both audiometric testing and speech recognition testing. Doucette v. Shulkin, 28 Vet. App. 366 (2017); Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Secondary service connection has been granted for an acquired psychiatric disability. In sum, the Board finds that competent and probative evidence of record is against a finding that the Veteran is entitled to a compensable rating for bilateral hearing loss prior to December 17, 2019 and greater than 40 percent thereafter. The Veteran is, however, entitled to service connection for an acquired psychiatric disorder as caused by his bilateral hearing loss. Service connection for an acquired psychiatric disorder is granted. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.