Citation Nr: 21005838 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-30 071 DATE: February 2, 2021 ORDER A compensable rating for bilateral hearing loss, to include on an extraschedular basis, is denied. FINDING OF FACT 1. Audiological testing of the Veteran’s bilateral hearing acuity in February 2010, January 2011, July 2013 and March 2017 when applied to Table VI and Table VII results in a noncompensable rating. 2. 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 a compensable rating for bilateral hearing loss, to include on an extraschedular basis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.383, 3.385, 4.85-4.87, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 1977 to August 1999. He is seeking for a compensable rating for bilateral hearing loss, to include on an extraschedular evaluation. A Board hearing was held for this appeal in November 2014. In October 2015, the Board denied a compensable rating for the Veteran’s bilateral hearing loss, which he appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In September 2017, the Court issued a memorandum decision vacating the October 2015 Board decision, and remanded the case to the Board. The Court held that when addressing the extraschedular evaluation, the Board (1) failed to discuss whether ear tenderness (which was reported by the Veteran at his February 2013 RO hearing) was or was not contemplated by the rating criteria for hearing loss, (2) failed to discuss a July 2013 VA examination indicating that the Veteran’s hearing loss impacted his ordinary conditions of life, including his ability to work, as well as his written statement dated April 2014 stating that his multiple disabilities, to include hearing loss had impacted his life and daylily activities and forced him to resign from work, and (3) the Board used incorrect standard of “significant interference” with employment rather than the correct standard of “marked interference” articulated by the Court in Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). In May 2018 and August 2019, the Board twice remanded the increased rating claim for referral to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38C.F.R. §3.321 (b)(1). In May 2020, the Director issued an Advisory Opinion denying extraschedular evaluation for bilateral hearing loss. The Director found no evidence to show hospitalization due to the Veteran’s hearing loss or tenderness of ears, no evidence to show tenderness of ear caused additional disability and no evidence to show hearing loss or tenderness of ear caused marked interference with employment. Schedular Evaluation The Veteran’s bilateral hearing loss is evaluated under Diagnostic Code 6100. See 38 C.F.R. §§ 4.85, 4.86. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability 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 pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85. 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 together with the results of a puretone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel 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 evaluation is found from Table VII (in 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. 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 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 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). In February 2010, the Veteran underwent VA audiometric testing which shows the following results: HERTZ 1000 2000 3000 4000 AVERAGE Maryland CNC RIGHT 30 30 35 30 31 96% LEFT 30 30 35 30 34 100% In January 2011, the Veteran underwent VA audiometric testing which shows the following results: HERTZ 1000 2000 3000 4000 AVERAGE Maryland CNC RIGHT 20 30 30 30 27.5 98% LEFT 20 25 30 35 27.5 98% In July 2013, the Veteran underwent VA audiometric testing which shows the following results: HERTZ 1000 2000 3000 4000 AVERAGE Maryland CNC RIGHT 35 40 35 40 37.5 100% LEFT 40 40 40 50 42.5 100% In March 2017, the Veteran underwent VA audiometric testing which shows the following results: HERTZ 1000 2000 3000 4000 AVERAGE Maryland CNC RIGHT 30 35 40 35 35 94% LEFT 35 40 45 50 42 94% Neither ear has puretone threshold disparity at 1000 Hertz and 2000 Hertz level as described by 38 C.F.R. § 4.86(b), nor has the decibel loss of 55 or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), therefore, Table VIA is not applicable here. Applying Table VI to the February 2010, January 2011, July 2013 and March 2017 audiological testing results, the combination of average decibel loss (31 in 2017, 27.5 in 2011, 37.5 in 2013 and 35 in 2017) and speech recognition score (96 percent 2010, 98 percent in 2011, 100 percent in 2013 and 94 percent in 2017) in the right ear equates to Level I in 2010, 2011, 2013 and 2017. The combination of average decibel loss (34 in 2017, 27.5 in 2011, 42.5 in 2013 and 42 in 2017) and speech recognition score (100 percent 2010, 98 percent in 2011, 100 percent in 2013 and 94 percent tin 2017) in the right ear equates to Level I in 2010, 2011, 2013 and 2017. When these results are combined on Table VII, the result equates to a noncompensable rating for all four tests. VA treatment records during the applicable appeal period do not show audiological testing results that were worse than the audiometric testing in February 2010, January 2011, July 2013 and March 2017. As the audiometric testing does not support a compensable rating under DC 6100, the increased rating claim for hearing loss is denied on a schedular basis. Extraschedular Evaluation Extraschedular evaluation may be considered if the evidence shows that (1) the schedular rating criteria do not contemplate a veteran’s level of disability and symptomatology and is inadequate to rate a single service connected disability, and (2) the disability picture exhibits other related factors that are consistent with an extraschedular rating, such as marked interference with employment or frequent periods of hospitalization due exclusively to the disability. 38 C.F.R. § 3.321(b)(1), Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). VA regulation makes it clear that an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1) applies to an individual service-connected disability when the disability is so exceptional or unusual that it renders the regular rating schedule impractical, and such extra-schedular evaluation may not be based on the combined effect of more than one service-connected disability. This regulation applies to all cases pending before VA or the Court on or after January 2018. See 82 Fed. Reg. 57830, 57835 (Dec. 8, 2017). At his February 2013 RO hearing, the Veteran reported having experienced ear tenderness, this symptom is not contemplated by the rating criteria under DC 6100 for hearing loss. However, the medical records show that the Veteran’s ear tenderness was merely a transient symptom rather than a permeant one. The Veteran did not report this symptom at his February 2010, January 2011, July 2013 and March 2017 VA examinations for hearing loss, nor did he seek any treatment for this condition. For example, at his four VA examinations, he complained about not being able to hear clearly, feeling dull in his right ear, having difficulty hearing other people and understanding what they are saying, and having difficulty with phone, TV, and radio, etc. He did not report tenderness in his ears. The VA treatment records consistently show lack of complaints of tenderness in his ears. For example, audiology notes in December 2010, February 2011, November 2013, and January 2014 showed normal otoscopy results. Audiology notes in December 2017 show that the Veteran reported worsening of the right ear hearing, and that his hearing aids itched his ear canals. He denied vertigo, otalgia, aural fullness and other otologic symptoms. Audiology notes in February 2018 show that otoscopy revealed clear ear canals with visualization of the tympanic membrane bilaterally. As such, although the Veteran reported ear tenderness in 2013 at a RO hearing, the record does not show that he has a chronic condition of ear tenderness. As such, although DC 6100 does not contemplate ear tenderness, the Veteran’s previous occasional ear tenderness does not render the DC 6100 inadequate to evaluate his hearing loss. Next, the Board considers whether the Veteran’s single service connected disability of hearing loss has demonstrated an exceptional or unusual disability picture that has caused marked interference with his employment or frequent periods of hospitalization. Both February 2010 and January 2011 VA examiners indicated that the Veteran’s hearing loss did not affect his usual occupation as a cook/chef. The July 2013 VA examiner indicated that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including ability to work in that he reported his hearing loss impaired the ability to hear other people and understand what they are saying, as wells as caused difficulty with phone, TV, radio and computer. The March 2017 VA examination impacted his ordinary conditions of daily life, including ability to work in that he reported difficulty hearing in most environments, including listening to TV and conversation, even wearing hearing aids. However, neither July 2013 VA examination nor March 2017 VA examination indicated a “marked” interference with his employment or frequent hospitalization due to hearing loss. As such, while these two VA examinations show certain impact on employment due to his difficulty in hearing other people, such impact does not raise to the level of “marked” interference, especially when considering his occupation as a chef, hearing acuity does not seem to play a critical role to perform his job duties. A June 2017 rating decision granted a total disability based on individual unemployability (TDIU). However, TDIU was granted due to multiple service connected disabilities, not just hearing loss. In a statement/NOD dated April 2014, the Veteran stated that “chronic lumber spine condition, severe chronic left shoulder and neck conditions, bilateral severe chronic knees condition and 4 knee replacement on the sane knee, bilateral severe permanent impaired hearing loss, bilateral severe chronic tinnitus, severe chronic migraine headaches. Severe chronic sleep disturbance, severe chronic muscle and joint pain, severe chronic muscle spasm, bilateral severe chronic left/right wrist strain, status post carpal bilateral chronic eye condition which have impacted my life and daily activities and force me to resign from workforce.” The Veteran’s April 2014 statement is consistent with other evidence of the record showing that his inability to pursue meaningful employment was due to multiple service connected disabilities, especially his orthopedic conditions. For example, records from Social Security Administration ( SSA ) show that he was determined by SSA as “disabled” due to right knee and spinal problems, pitched nerve in shoulders, loss of hearing in the left ear and chronic headaches. In his TDIU claim (Form 8940) received by VA in December 2009, the Veteran claimed that he was unable to continue to work as a chef due to back, neck, right knee and left shoulder problems. In his TDIU claim (Form 8940) received by VA in February 2012, the Veteran claimed that he was unable to work due to his right knee disability. In his TDIU claim (Form 8940) received by VA in January 2017, the Veteran claimed that he was forced to leave his job at Andrew Airforce Base as a cook due to multiple disabilities and surgeries. VA treatment records in September 2013 showed that the Veteran had a right knee replacement surgery in January 2013. Prior to the surgery, he was still working at the White House and other jobs for 20 hours a week. He reported that he was limited in his ability to work because he has a lot of trouble standing and walking, mostly due to knees, and that his right knee had been operated on four times. VA treatment records in January 2015 show that he was- working part time as a chef at the White House and the Andrews Airforce officers club for 30 hours per week, and he complained about his neck pain, especially when he was more active. The records show that the Veteran was unable to obtain or maintain a meaningful employment die to multiple disabilities, and records did not show that his hearing loss alone has caused marked interference with his employment and he has not been shown to have been hospitalized as a result of his bilateral hearing loss. As such, a compensable rating for hearing loss based on extraschedular evaluation is not warranted. Here, it is noted that while the Board previously remanded for extraschedular consideration by the Director of Compensation and Pension, the Board did not take any position on the issue at that time. Rather, the claim was remanded for referral to give the Veteran the maximum opportunity to receive a higher rating. As discussed above, since the case has returned, and the Board has considered the evidence on the merits, there is no basis for an extraschedular award for hearing loss in this case. In sum, a compensable rating for hearing loss, to include on an extraschedular basis is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.