Citation Nr: A21019596 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 210413-152749 DATE: December 8, 2021 ORDER Entitlement to an initial rating greater than 10 percent for service-connected bilateral hearing loss is denied. Entitlement to an initial disability rating greater than 10 percent for service-connected tinnitus is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was manifested by no worse than Level III hearing impairment in his right ear and Level IV hearing impairment in his left ear. 2. Throughout the rating period on appeal, the Veteran was in receipt of the maximum schedular rating for tinnitus; this disability was not productive of an exceptional or unusual disability picture, marked interference with employment, or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating greater than 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.20, 4.85, Diagnostic Code 6100. 2. The criteria for an initial disability rating greater than 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, DC 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1962 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2021 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). Given the date of the rating decision on appeal, the Veteran's appeal is governed by the modernized review system, known by the Board as the AMA. 38 C.F.R. § 19.2. On his April 2021 notice of disagreement, the Veteran appealed the March 2021 RO decision directly to the Board, electing the "direct review" process. Based on the Veteran's choice to pursue a direct review of his appeal, the Board will decide the appeal "based on the evidence of record at the time of the prior decision" and no additionally submitted evidence may be considered. Increased Ratings Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation 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. A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Disabilities may be rated by analogy. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous). 1. Entitlement to an initial rating greater than 10 percent for service-connected bilateral hearing loss. The Veteran is seeking an initial rating greater than 10 percent for his service-connected bilateral hearing loss. For the following reasons, the preponderance of the evidence is against the appeal. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.8, 4.86, Tables VI, VIA, VII, Diagnostic Code 6100. With hearing loss disabilities, evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. In 38 C.F.R. § 4.85, the vertical lines of Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns of Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage disability evaluation is then found from Table VII of 38 C.F.R. § 4.85, by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. Further, the provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 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. 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Further, when the puretone threshold is 30 decibels or less at 1,000 Hz and 70 dB or more at 2,000 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. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral. Id. On the VA audiological examination in March 2020, the average pure tone decibel loss was 46 in the right ear and 60 in the left ear. Speech discrimination was 80 percent in the right ear, and 76 percent in the left ear. As such, the Veteran's right ear shall be assigned the numeric designation of III under Table VI. 38 C.F.R. § 4.86(b). Applying 38 C.F.R. § 4.85, Table VI, to the audiological findings, the Veteran's left ear is assigned a numeric designation of IV. Application of 38 C.F.R. § 4.85, Table VII results in a finding of a 10 percent rating. 38 C.F.R. § 4.85, DC 6100. During the March 2021 VA audiological examination, puretone threshold averages were 55 dB for the right ear and 65 dB for the left ear. Speech discrimination was 88 percent in the right ear, and 84 percent in the left ear. As such, the Veteran's right ear shall be assigned the numeric designation of I under Table VI. 38 C.F.R. § 4.86(b). Applying 38 C.F.R. § 4.85, Table VI, to the audiological findings, the Veteran's left ear is assigned a numeric designation of III. Application of 38 C.F.R. § 4.85, Table VII results in a finding of a noncompensable rating. 38 C.F.R. § 4.85, DC 6100. Because the disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating beyond that already provided. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In offering this conclusion, the effect of the Veteran's hearing loss on his ability to function in the workplace has been considered. The record reflects the Veteran's reports that his condition impacts his ability to communicate due to the inability to hear conversations. Such symptoms are expressly contemplated by the regulation for impaired hearing. Doucette v. Shulkin, 28 Vet. App. 366, 370-71 (2017) (holding that the hearing loss rating criteria contemplate the functional effects of difficulty hearing and understanding speech). There is no doubt to resolve. 38 U.S.C. § 5107(b). Accordingly, the claim for increase is denied. 2. Entitlement to an initial disability rating more than 10 percent for the service-connected tinnitus. Tinnitus is rated under 38 C.F.R. § 4.87, Diagnostic Code 6260, which provides a maximum 10 percent evaluation for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. Note (2) provides that a single evaluation for recurrent tinnitus is to be assigned, whether tinnitus is present in one or both ears. Id. A higher evaluation for tinnitus is not available in the Rating Schedule, such that the appeal may only be granted on an extraschedular basis. However, the evidence of record does not support such a finding. Rather, the medical evidence, including the March 2020 and 2021 VA examinations, establish that the full scope of the Veteran's reported symptomatologynamely, recurrent tinnitusis contemplated by the applicable rating criteria. Moreover, the evidence does not show that the Veteran's tinnitus has caused marked interference with his employability or necessitated periodic hospitalizations. Further, to the extent that the Veteran contends that his disability has led to any other unrelated symptoms, the Veteran is now service connected for both a psychiatric disorder and Meniere's disease as secondary to his service-connected tinnitus. Essentially, any claimed symptoms not considered by the rating criteria for tinnitus have now been service connected themselves. Finally, neither the Veteran nor his representative have argued that the Veteran's hearing loss and tinnitus result in an inability to secure or follow a substantially gainful occupation, and a review of the record does not otherwise raise such an issue. Accordingly, no further discussion of entitlement to a TDIU is warranted. In sum, the evidence does not reflect that the Veteran's service-connected tinnitus is so exceptional in nature as to not be fully contemplated by the rating schedule. Rather, there are no unusual clinical pictures presented, nor is there any other factor which takes the disability outside the usual rating criteria. Thus, even with the favorable resolution of doubt, the Veteran has not carried the burden of demonstrating that his tinnitus is of such a nature that referral for extraschedular evaluation is warranted. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.