Citation Nr: 21073759 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 14-38 177A DATE: December 10, 2021 ORDER Entitlement to an increased disability rating higher than 0 percent for bilateral hearing loss prior to June 29, 2021 is denied. Entitlement to an increased disability rating higher than 30 percent for bilateral hearing loss from June 29, 2021 is denied. FINDINGS OF FACT 1. From March 22, 2005 to June 29, 2021, the Veteran's bilateral hearing loss disability manifested as no worse than level III in the left ear and level II in the right ear according to VA regulations. 2. From June 29, 2021, the Veteran's bilateral hearing loss disability manifested as no worse than level VII in the left ear and level VI in the right ear according to VA regulations. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 0 percent from March 22, 2005 to June 29, 2021 for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.23, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100, 4.86. 2. The criteria for a disability rating higher than 30 percent from June 29, 2021 for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.23, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran retired from the United States Air Force after more than twenty-three years of active-duty service, including more than three years of foreign service. The Veteran received an Honorable Discharge. This matter comes before the Board of Veterans' Appeals (Board) from a July 31, 2013 ratings decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to an increased rating for bilateral hearing loss. The Board granted the Veteran's motion for advance on the docket. 38 U.S.C. § 7107(b); 38 C.F.R. § 902(c). This matter was previously before the Board in October 2018, at which time the Board remanded it to the RO to obtain a new VA audiologic examination to determine the current severity of the Veteran's hearing loss. That examination occurred on June 29, 2021. The Board finds the RO substantially complied with the remain instruction and an additional remand to comply with the remand directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146, 147 (1999)(noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). On August 6, 2021, the RO issued a ratings decision and found that the Veteran was entitled to an increased rating for his service-connected bilateral hearing loss effective June 29, 2021, the date of his most recent VA audiologic examination. The RO provided a Supplemental Statement of the Case on September 21, 2021 explaining the completed development and ratings decision. The Veteran's representative submitted an Appellate Brief on October 29, 2021 that continued to assert the Veteran should receive a rating higher than 0 percent, earlier than the date of the most recent examination, and higher than 30 percent as currently rated. The Board has thoroughly reviewed all evidence in the claims file. The analysis below focusses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board's reasons for rejecting evidence that may arguably be favorable to the Veteran. The Veteran should not assume that the Board has overlooked evidence not explicitly discussed herein. The RO provided the Veteran with the pertinent regulations for consideration in its October 2014 Statement of the Case, and this decision does not repeat them in full. The Veteran has not raised any other issues regarding the duty to notify or duty to assist, nor have any other issues reasonably been raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017)(confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). The Veteran has an initial disability rating for his service-connected bilateral hearing loss of 0 percent from March 22, 2005 to June 29, 2021. He seeks higher ratings both for the period prior and subsequent to June 29, 2021. The Board finds that the evidence does not support a higher rating for either period. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Hearing loss disability ratings range from 0 percent to 100 percent based on objective audiometric testing of puretone threshold averages in the frequencies 1000, 2000, 3000 and 4000 Hertz, and controlled speech discrimination testing (Maryland CNC) by a state-licensed audiologist. 38 C.F.R. § 4.85(a). Disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides two tables for rating purposes (Table VI and Table VIA) used to determine a Roman numeral designation (I through XI) for the level of hearing impairment in each ear. See 38 C.F.R. § 4.85. Table VI is used by default. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for the level of hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). When the puretone 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, and then that numeral will then be evaluated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Table VIA is also utilized when the audiologist certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). Table VII is then used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. 1. Increased rating for bilateral hearing loss for the period prior to June 29, 2021, currently evaluated as noncompensable. Following his claim for increased ratings, the Veteran underwent VA audiological examination in July 2013. That examination's findings show the left ear with 86 percent speech discrimination and average puretone threshold of 58. That examination's findings show the right ear with 84 percent speech discrimination and average puretone threshold of 52. The findings do not trigger the application of 38 C.F.R. § 4.86. Applied to Table VI, the findings result in a designator of III in the left ear and II in the right. Applied to Table VII, this results in a disability rating of 0 percent. The Veteran underwent speech reception threshold and word recognition testing in September 2015. At that time his left ear had a speech reception threshold of 35 dB with a word recognition score of 80 percent at 80 dB. His right ear had a speech reception threshold of 45 dB with a word recognition score of 68 percent at 80 dB. The audiologist who administered those tests observed "The Patient's hearing has not changed significantly since his/her last evaluation." The same tests administered in January 2017 showed the Veteran's left ear had a speech reception threshold of 40 dB anda word recognition score of 76 percent at 80 dB. His right ear had a speech reception threshold of 40 dB and a word recognition score of 68 percent at 80 dB. The audiologist noted the Veteran's "Stable hearing loss bilaterally as compared to last few audiograms in Sep/24/2015." Because the September 2015 and January 2017 audiological evaluations did not include a Maryland CNC test or a puretone threshold test, those results cannot, as a matter of law, be used by the Board in determining whether the Veteran should be granted an increased rating for his hearing loss. 38 C.F.R. § 4.85(a). The Board considered the Veteran's statements and treatment records but finds that nothing in those records supports a finding that the Veteran is entitled to a disability rating for his service-connected left ear hearing loss higher than 0 percent prior to June 29, 2021, the date of his most recent VA audiologic examination. Likewise, the Board considered various statements as competent reports of the Veteran's symptomatology as they observed it, such as decreased hearing acuity and difficulty with conversations at lower volumes. However, the evidence as a whole does not indicate that the Veteran's hearing acuity and hearing loss disability warrant higher evaluations under VA's tables for rating hearing loss disabilities prior to June 29, 2021. The evidence of record does not establish that the Veteran's bilateral hearing loss disability met the criteria for an increased rating higher than 0 percent prior to June 29, 2021. The effective date for an increased rating is governed by statute and regulation. "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C. § 5510(b)(3); 38 C.F.R. § 3.400(o). The Board is mindful that an "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested." Swain v. McDonald, 27 Vet. App. 219, 224 (2015)(quoting DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011)). In this case, the Board has carefully considered the 2013, 2015, 2017, and 2021 test results, along with lay statements and other information presented in the file, and the Board determines that it is not factually ascertainable when the Veteran's bilateral hearing loss increased in severity so as to approximate the rating criteria for increased compensation. Therefore, the effective date of the 30 percent rating is not disturbed. The Board notes that in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims held that an examining VA audiologist must describe the functional effects caused by a hearing disability in his or her final report. The 2013 and 2021 VA examination reports of record include descriptions of the functional effects caused by the Veteran's hearing loss. For instance, the April 2013 VA examination report indicates that, when the examiner asked the Veteran whether his hearing loss impacts ordinary conditions of daily life, including ability to work, the Veteran said, "No." Other credible lay statements are present in the treatment and other records of evidence, including those related to hearing aid devices furnished to the Veteran by the VA. Additional references to the Veteran's hearing loss disability are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran's hearing loss disability that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. None of the other pertinent medical evidence of record presents findings significantly contrary to those in the most detailed evidence discussed above featuring specialized audiometric measurements of the Veteran's hearing acuity. Nor does any other evidence of record otherwise indicate that the criteria for an increase of the disability ratings for hearing loss are met in this case. The Board observes that the Veteran's diminishment of hearing acuity and speech recognition are contemplated by the schedular rating criteria for hearing loss. Thus, as explained above, the Board's analysis results in a finding that no increased rating is warranted for the Veteran's hearing loss in this case. This case presents the Board with a situation in which all of the probative competent audiological evidence shows audiometric data that fail to meet the quantitative criteria for increased ratings. The audiometric reports of record reflect the testing and reporting of trained audiology professionals who are competent to prepare such reports. The Board notes that there is no indication that the audiometric reports of record are anything but reliable. The Board finds that the audiometric reports discussed above are highly probative evidence in evaluating the severity of the Veteran's hearing loss. The pertinent examination reports discussed above are not contradicted by any other probative evidence (no evidence of record shows audiometric findings meeting the criteria for higher ratings for hearing loss in any portion of the rating period in this appeal). Thus, the Board finds the examination reports to be persuasive in showing that the Veteran's hearing loss has not met the criteria for further increased ratings during the periods for consideration. The Board has also considered an extraschedular evaluation in this case. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Director, Compensation and Pension Service (Director) for assignment of an extraschedular evaluation commensurate with the average earning capacity of the impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321 (b)(1) only where circumstances are presented which the Director might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral or extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. If the schedular rating criteria do reasonably describe the disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. If this is the case, then the RO or the Board must refer the matter to the Director for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the diagnostic codes. The Board finds that the functional effects of his hearing loss disability were adequately addressed by the examiner and are sufficient for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b). However, entitlement to an extraschedular rating for bilateral hearing loss is not warranted by the evidence, and the claim for increased rating is denied. 2. Entitlement to increased rating for bilateral hearing loss for the period beginning June 29, 2021, currently evaluated at 30 percent. Following the Board's remand, the Veteran underwent VA audiologic testing on June 29, 2021. That examination noted an increase in the Veteran's hearing loss. That examination's findings show the left ear with 60 percent speech discrimination and average puretone threshold of 70. That examination's findings show the right ear with 64 percent speech discrimination and average puretone threshold of 60. The findings do not trigger the application of 38 C.F.R. § 4.86. Applied to Table VI, the findings result in a designator of VII in the left ear and VI in the right. Applied to Table VII, this results in a disability rating of 30 percent. This is the correct rating for the Veteran's current disability due to bilateral hearing loss based on objective findings. The June 2021 audiological testing report also discusses the functional impact of the Veteran's hearing loss, as required by Martinak. The Veteran reported that he has difficulty understanding conversations and has to listen to the TV at a loud volume to hear. Without repeating the above discussion related to functional impact, the Board has carefully considered the statements of the Veteran, and the evidence of record, and concludes that the criteria for a rating above 30 percent for the period beginning June 29, 2021 have not been met. For reasons already address above in addressing the period prior to June 29, 2021, the evidence of record does not support an increased rating for the period beginning June 29, 2021 based on extra-schedular considerations. Finally, from a due process standpoint, the Board notes the claims file does contain evidence developed by the RO (primarily medical records) after the September 2021 Supplemental Statement of the Case on this case. None of that evidence is relevant, however, to the Veteran's claim for increased rating for bilateral hearing loss at this time. These records show medical treatments, but they are not relevant to the issue at hand. See, e.g., Golz v. Shinseki, 590 F.3d 1317, 1321 (2010), citing Black's Law Dictionary 1316 (8th ed. 2004) (defining "relevant" as "[l]ogically connected and tending to prove or disprove a matter in issue; having appreciable probative value-that is, rationally tending to persuade people of the probability or possibility of some alleged fact"); see also Counts v. Brown, 6 Vet. App. 473, 476 (1994) (citing the Federal Rule of Evidence 401 defining "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"). In the factual circumstances of this case, the additional evidence contains no information that would tend to prove the matter at issue, which is whether the Veteran's bilateral hearing loss more nearly approximates the higher rating criteria. The Board finds no waiver of RO consideration or issuance of another supplemental statement of the case is required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a claimant's] interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"); see also Soyini v. Derwinski, 1 Vet. App. 540 (1991) (holding that a remand is not necessary where it would impose additional burden with no benefits flowing to the Veteran). RAY BARTO SLABBEKORN, JR. Veterans Law Judge Board of Veterans' Appeals Slabbekorn Jr, Ray 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.