Citation Nr: 21009277 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 10-44 293 DATE: February 22, 2021 ORDER Entitlement to an extraschedular disability rating for the Veteran’s service-connected bilateral hearing loss pursuant to 38 C.F.R. § 3.321(b)(1) is denied. REMANDED Entitlement to service connection for vertigo is remanded. FINDINGS OF FACT 1. An extraschedular rating for the Veteran’s service-connected bilateral hearing loss is not warranted for the Veteran’s allegation of vertigo caused by his service-connected bilateral hearing loss, as all schedular rating alternatives have not been exhausted, to include the application of secondary service connection principles. 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. CONCLUSION OF LAW The criteria for entitlement to an extraschedular disability rating for the Veteran’s service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.310, 3.321(b)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1977 to March 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2011 and October 2019 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran has not requested a Board hearing on this matter. The undersigned Veterans Law Judge has been assigned to consider this matter pursuant to 38 C.F.R. § 20.106(a) (formerly 19.3(a)). In December 2020, the Veteran’s attorney filed a brief requesting that the RO complete the remand directives ordered by the Board in the November 2018 and June 2020 decisions. However, the matters had already been readjudicated in a November 2020 Supplemental Statement of the Case. The attorney was notified in December 2020 and January 2021 that the appeal had been returned to the Board for appellate consideration. In the absence of any request seeking a time extension for the submission of additional evidence or argument, the Board shall proceed with its appellate review. Entitlement to an extraschedular disability rating for the Veteran’s service-connected bilateral hearing loss pursuant to 38 C.F.R. § 3.321(b)(1) is denied. The Veteran seeks an extraschedular disability rating for his bilateral hearing loss pursuant to 38 C.F.R. § 3.321(b)(1) based on the symptoms of vertigo and social impairment, which he argues are not adequately contemplated by the diagnostic criteria in VA’s rating schedule. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve on the basis of the criteria set forth in this paragraph, an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegatee that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (Court) has clarified the process for determining whether a veteran is entitled to an extraschedular rating. Recently, in Long v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2371 (Dec. 30, 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. Long, at *6-7. 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 *9. 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 *10-11, citing Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). With the applicable legal principles established, the Board turns to the procedural history in this matter. In a January 2017 decision, the Board denied an initial compensable disability rating for left ear hearing loss and found that the functional effects of the Veteran’s hearing loss were contemplated by the rating schedule. The Veteran appealed to the Court, which subsequently issued a Memorandum Decision in April 2018, setting aside the Board’s January 2017 decision to the extent that it did not consider extraschedular consideration for the Veteran’s service-connected left ear hearing loss. Per the Memorandum Decision, at a January 2015 VA audiological examination, the Veteran reported having vertigo and, under functional effects, he subjectively conveyed that his hearing loss made people think that he was dumb. The Court went on to state: These are the type of functional effects that the Court in [Doucette v. Shulkin, 28 Vet. App. 366 (2016)], noted may not be contemplated by the rating criteria. The vertigo is explicitly mentioned as a functional effect not contemplated by the rating schedule. The stated reaction of other people to [the Veteran’s] hearing loss is similar to the social isolation mentioned in Doucette, and may have implications for employment. As such, the Court remanded the question of an extraschedular disability rating for the service-connected left ear hearing loss so that the Board could address whether referral for extraschedular consideration was warranted. In a subsequent November 2018 decision, the Board referred the matter of whether the Veteran’s reported vertigo and social impairment—alleged as due to his service-connected hearing impairment—to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination as to whether the disability picture associated with the Veteran’s service-connected left ear hearing loss warranted the assignment of an extraschedular rating. The November 2018 Board decision did not actually conduct any analysis concerning whether referral was appropriate and/or warranted. Rather, the Board merely reiterated the Court’s April 2018 instructions and reflexively referred the matter on that basis. On remand the Director of the Compensation and Pension Service denied an extraschedular rating for left ear hearing loss in a July 2019 advisory opinion. Also while on remand, in an October 2019 rating decision, service connection for the right ear was granted back to the date of claim. As such, the Veteran is now service connected for bilateral hearing loss from December 2010. The Board reiterates that the Court in April 2018 found that the following two symptoms may not have been contemplated by the VA rating schedule pursuant to Doucette: vertigo and social isolation (due to others thinking the Veteran is dumb). While it is true that vertigo is not contemplated by the disability rating criteria for hearing loss, the Board notes that vertigo is a disability subject to secondary service connection/a separate compensable disability rating, and the Veteran may still pursue entitlement to service connection for vertigo using the schedular rating devices. See Long and Morgan, supra; see e.g. 38 C.F.R. § 4.87 Diagnostic Code 6204 (peripheral vestibular disorder is a condition subject to service connection consideration and eligible for evaluation under the General Rating Schedule); 38 C.F.R. § 3.310. As such, the Board erred in November 2018 when it did not exhaust the rating schedule but immediately referred the question of an extraschedular rating to the Director of the Compensation and Pension Service, when it should have found a secondary service connection claim (38 C.F.R. § 3.310) was raised regarding his claims of vertigo. Rather, in order to maximize benefits, the Board should have remanded to obtain a VA vertigo examination and secondary service connection (38 C.F.R. § 3.310) opinion. See Morgan, 31 Vet. App. at 168 (holding that “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 non-hearing loss disability secondary to the hearing loss disability). For the sake of clarity, the Board has elected to bifurcate this matter, and the Veteran’s claim seeking service connection for vertigo shall be treated as a separate issue, which is discussed further in the REASONS FOR REMAND section below. On the question of whether the Veteran’s “social isolation” constituted a symptom warranting extraschedular consideration, at the time of the November 2018 Board decision, the issue of service connection for an acquired psychiatric disorder was still on appeal and being developed at the Agency of Original Jurisdiction (AOJ). Pursuant to 38 C.F.R. § 4.130, service-connected mental health disorders are rated based upon the level of occupational and social impairment. As such, any question of an extraschedular rating for social isolation should have been remanded as intertwined with the pending claim seeking service connection for an acquired psychiatric disorder. It was error for the Board to have referred the matter to the Director of the Compensation and Pension Service prior to the question of service connection for an acquired psychiatric disorder being resolved. In the June 2020 Board decision, entitlement to service connection for the acquired psychiatric disorder of major depression was granted. In a June 2020 rating decision, the Veteran’s acquired psychiatric disability was assigned an initial disability rating of 50 percent, effective January 9, 2009, with a higher 70 percent rating assigned from July 3, 2018. As noted in the June 2020 Board decision, a July 2018 VA mental health examination reported that the Veteran’s psychiatric symptoms included difficulty in establishing and maintaining effective work and social relationships. The disability ratings assigned for the Veteran’s service-connected acquired psychiatric disability in the June 2020 rating decision appropriately compensate 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. See e.g. July 2018 VA examination. 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 major depression, and the compensation/rating awarded in the June 2020 rating decision. In sum, the Veteran’s claim for an extraschedular rating for his service-connected bilateral hearing loss based on the symptoms of vertigo and social impairment must be denied as exceptionality has not been shown. The first Thun step has not been satisfied, as the Veteran’s reports of vertigo and social isolation, alleged as symptoms of his service-connected bilateral hearing loss, could have been addressed using the conventional schedular rating devices. Neither the Veteran nor the attorney have identified any other symptoms subjectively associated with the Veteran’s bilateral hearing loss that warrant extraschedular consideration. 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 major depression. The Veteran’s secondary service connection claim for vertigo remains unresolved and is discussed below. REASONS FOR REMAND Entitlement to service connection for vertigo is remanded. In the June 2020 decision, the Board requested that the Veteran undergo a VA examination to assess the nature and severity of the Veteran’s claimed vertigo. The VA examiner was requested to issue medical nexus opinions addressing whether any vertigo disability was caused or aggravated by the Veteran’s service-connected bilateral hearing loss. Following an in-person examination and review of the electronic claims file, the VA examiner confirmed that the Veteran carried a diagnosis of benign paroxysmal positional vertigo (BPPV). Regarding causation, the VA examiner opined that the Veteran’s BPPV was less likely than not caused by the Veteran’s service-connected bilateral hearing loss. The VA examiner explained that BPPV occurs when tiny calcium crystals called otoconia come loose from their normal location on the utricle of the inner ear, and were therefore unrelated to the Veteran’s sensorineural hearing loss. The Board finds this opinion to be fully articulated and supported by a sufficient explanatory rationale. Regarding aggravation, the VA examiner opined that the Veteran’s BPPV was less likely than not aggravated by the Veteran’s service-connected bilateral hearing loss, because the Veteran’s bilateral hearing loss came prior to the development of BPPV. The Board finds this rationale to be nonsensical and entitled to no probative value. When addressing aggravation, it does not matter which condition came first; instead the dispositive issue is whether the Veteran’s service-connected bilateral hearing loss has caused any incremental increase in the severity of the Veteran’s BPPV, regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Accordingly, the Veteran’s claim seeking service connection for vertigo must be remanded for an addendum VA medical opinion appropriately addressing the aggravation prong of a secondary service connection claim under 38 C.F.R. § 3.310. Additionally, the RO is requested to obtain any additional VA treatment records from November 2020 to the present, if such evidence exists. 38 C.F.R. § 3.159(c)(2) and (3). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2020 to the present. 2. Obtain an addendum VA medical opinion from an appropriate VA examiner regarding the following inquiry: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current BPPV has been aggravated by his service-connected bilateral hearing loss? The VA examiner is requested to review the electronic claims file, including a copy of this REMAND, prior to issuing an opinion. The VA examiner is reminded of the recent precedential Court decision in Ward, supra, which held that aggravation under 38 C.F.R. § 3.310(b) does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence.” See id. at 239. [Continued on Next Page] This opinion must be supported by an explanatory rationale based on the examiner’s medical expertise, the examiner’s clinical experience, current medical principles, and citations to the record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.