Citation Nr: 21009501 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 20-08 266 DATE: February 22, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s left ear hearing loss manifests at worst as level I. 2. The Veteran’s right ear hearing loss manifests at worst as level I. 3. The Veteran’s bilateral hearing loss has not resulted in marked interference with employment or frequent hospitalizations. CONCLUSION OF LAW The criteria for an increased compensable disability rating for the Veteran’s service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1962 to June 1966. 1. Entitlement to a compensable disability rating for bilateral hearing loss The Veteran contends that his bilateral hearing loss disability is worse than contemplated by the current noncompensable rating. After a thorough evaluation of the evidence, the Board finds that a compensable disability rating for bilateral hearing loss is not warranted. The Veteran submitted an intent to file for compensation in June 2013. The Veteran submitted a formal claim for hearing loss in August 2013. The Regional Office (RO) initially assigned an erroneous effective date when it granted entitlement to service connection for left ear hearing loss disability in a January 2015 rating decision. In December 2016, the RO issued a rating decision announcing a correction to the effective date. In February 2018, the RO issued another rating decision regarding the corrected effective date and continuing a noncompensable disability rating for left ear hearing loss. In the January 2019 Notice of Disagreement, the Veteran, through his representative, argued that the schedule of disability ratings does not adequately address the Veteran’s hearing loss, essentially requesting an extraschedular evaluation. At the August 2020 Board hearing, the Veteran, through his representative, specifically requested an extraschedular evaluation of the Veteran’s hearing loss disability. This contention is addressed below after the discussion on the Veteran’s hearing loss examinations. The Board notes that the previous disagreement regarding the correct effective date of entitlement for service connection for left ear hearing loss disability was previously dismissed by the Board in an October 2020 decision. The RO issued a rating decision in October 2020 granting entitlement to bilateral hearing loss with an effective date of June 28, 2013 at a noncompensable level. The RO issued a Supplemental Statement of the Case in October 2020 denying a compensable rating for bilateral hearing loss disability. Disability evaluations are determined by evaluating the extent to which the claimant’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The method for rating a hearing loss disability depends in part on the results of the Maryland CNC speech recognition test, and in part on the results of the pure tone audiometric test at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85 describes the sequence of steps that a VA adjudicator must use to apply the rating criteria for hearing loss disability. For the pure tone audiometric test, an average pure tone threshold is obtained by dividing the sum of these thresholds by four. After the average pure tone threshold is determined, Table VI of 38 C.F.R. § 4.85 is normally used to assign a Roman numeral hearing impairment designation based on a combination of the percent of speech discrimination and pure tone threshold average. After a Roman numeral hearing impairment designation has been assigned to each ear, Table VII of § 4.85 is used to assign the disability rating for bilateral hearing loss by combining the Roman numeral hearing impairment designations for both ears. Id. On the authorized audiological evaluation in December 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 25 30 25 LEFT 10 20 30 40 30 The average rating for the left ear of results for 1000 Hertz to 4000 Hertz was 30 and for the right ear was 25. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The Veteran commented that his hearing loss interferes with his ability to hear in noise. Using Table VI, these findings indicate hearing acuity of Level I for each ear. According to Table VII, these designations indicate that a zero percent disability rating is appropriate. There is not an exceptional pattern of hearing loss pursuant to 38 C.F.R. § 4.86. The Veteran appeared for a VA hearing loss examination in February 2020. The examiner was unable to perform the test because the Veteran’s ears were impacted with wax. The examiner recommended removal of wax prior to a new examination. The medical evidence of record shows that the Veteran had a medical appointment on the morning of March 5, 2020 during which the impacted wax was removed from his ears. That afternoon, the Veteran was afforded a VA hearing loss examination. On that authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 40 40 LEFT 25 25 35 45 35 The average rating for the left ear hearing loss from 1000 Hertz to 4000 Hertz was 35 and for the right ear was 35. Speech audiometry revealed speech recognition ability of 100 percent in the left ear and 100 percent in the right ear. The Veteran denied a history of ear pain or pressure, true vertigo, ear drainage, and ear surgeries. No history of hearing aid use. Using Table VI, these findings indicate hearing acuity of Level I for each ear. According to Table VII, these designations indicate that a zero percent disability rating is appropriate. There is not an exceptional pattern of hearing loss pursuant to 38 C.F.R. § 4.86. As mentioned above, the Veteran’s representative specifically requested referral for an extraschedular evaluation of the Veteran’s hearing loss disability pursuant to 38 C.F.R. § 3.321(b). The Veteran commented at the December 2014 VA hearing loss examination that his hearing loss interferes with his ability to hear in noise. The Veteran argues, through his representative, that interference with occupational impairment with reference to the Veteran’s hearing loss disability is not adequately contemplated by the disability rating schedule and references commentary from the Veteran. At the August 2020 Board hearing, the Veteran testified that he did not use hearing aids and that he regularly had to see a medical provider to have impacted wax removed from his ears. There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Id. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. In Chudy v. O'Rourke, 30 Vet. App. 34 (2018), the Court of Appeals for Veterans Claims (Court) affirmed the Board’s decision to deny a request for extraschedular referral for the appellant’s service-connected hearing loss disability. Citing Yancy, the Court explained that, “In other words, absent ‘marked interference with employment’ or ‘frequent periods of hospitalization,’ any error as to the first Thun element would be harmless.” Id. at 38. Since there was no evidence that the appellant’s hearing loss caused marked interference with employment, the Court held that the Board was correct to deny the request for an extraschedular referral. Id. at 39. As to whether the evidence regarding the Veteran’s hearing loss disability presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate, the Veteran’s representative contends that it does. Taking the Veteran’s lay statements as credible and competent as to his own experiences regarding his hearing loss disability, he has difficulty hearing in noisy environments, and he requires regular removal of impacted wax from his ears. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran also stated at the Board hearing that he is told by others that he speaks more loudly than other people. Difficulty discerning sounds in a noisy environment is a common description of hearing loss disability. The Veteran may need wax removal more often than an average person. However, the evidence of record as a whole does not document exceptional circumstances regarding the Veteran’s hearing loss disability that are not contemplated by the disability rating schedule. Thun, 22 Vet. App. 111 (2008). The record includes no evidence documenting that due to his service-connected hearing loss disability, the Veteran has required hospitalization during the appeal period or that this disability has resulted in marked interference with employment. Under these circumstances, at a minimum the second requirement of the Thun test has not been satisfied and, therefore, referral for extraschedular consideration would be inappropriate. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for an increased rating. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The evidence of record does not support that the Veteran’s bilateral hearing loss disability has met the criteria for a compensable rating required by 38 C.F.R. § 4.85. Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply, and the appeal must be denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Miller 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.