Citation Nr: 21013699 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-06 708 DATE: March 10, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT For the entire period on appeal, valid audiometric examinations show no greater than a level I hearing loss for the right ear and no greater than a level I hearing loss for the left ear. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1971 to August 1973. This matter comes before the Board of Veterans’ Appeals (Board) on an appeal from a March 2015 rating decision issued by the Agency of Original Jurisdiction (AOJ). The appeal was previously remanded by the Board in September 2018 to obtain a VA examination assessing the current severity of the Veteran’s hearing loss. The AOJ attempted to schedule the requested VA examinations in September 2019. The Veteran opted not to attend the VA examinations in October 2019. Thus, the Board determines that there has been substantial compliance with the December 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an initial compensable rating for bilateral hearing loss Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A disability rating 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 is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As to claims of entitlement to an increased evaluation, as opposed to a higher initial evaluation, “the relevant temporal focus... is on the evidence concerning the state of the disability from the period one year before the claim was filed until VA makes a final decision on the claim.” Hart v. Mansfield, 21 Vet. App. 505, at 509 (2007). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned. 38 C.F.R. § 4.86. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran was initially granted service connection at a 0 percent rating effective April 17, 2014. In November 2014, the Veteran underwent a private audiological evaluation. It is unclear what speech recognition test was used for the November 2014 evaluation. In order to be usable for rating purposes, an audiogram must contain word recognition testing that uses the Maryland CNC word test. 38 C.F.R. § 4.85 (2018). Alternatively, audiometric results indicating an exceptional pattern of hearing loss do not require speech recognition scores for rating purposes. 38 C.F.R. § 4.86 (2018). The above audiogram did not indicate use of the Maryland CNC word test or an exceptional pattern of hearing loss. Therefore, the Board did not consider these results. The initial rating was based on the results of a February 2015 VA examination. The results of the February 2015 audiological test are as follows, with puretone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 25db 25db 40db 40db LEFT 30db 30db 30db 40db Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 96 percent bilaterally. The average of the puretones between 1000-4000 Hertz was 32.5 bilaterally. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of I for the right ear and I for the left. Such a degree of hearing loss warrants a noncompensable rating under Table VII. Because the Veteran’s audiometric results do not reveal an exceptional patter on hearing impairment, Table VIa is not applicable. 38 C.F.R. § 4.86. The Veteran underwent a second private audiological evaluation in September 2015. The results of the September 2015 audiological test are as follows, with puretone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 90db 90db none 85db LEFT 95db 100db none 105db Again, it is unclear what speech recognition test was used for the September 2015 evaluation. However, the audiological testing revealed an exceptional pattern of hearing impairment and therefore do not require speech recognition scores for rating purposes. The Board notes that puretone thresholds were not obtained for 3000 Hz. Nevertheless, the reviewing provider noted the average of the puretones between 1000-4000 Hertz were 88 for the right ear and 97 for the left. Using Table VIa in 38 C.F.R. § 4.85, the Veteran received a numeric designation of VIII for the right ear and IX for the left. Such a degree of hearing loss warrants a 50 percent rating under Table VII. The September 2015 audiologist indicated questionable validity of the examination results. The audiologist noted that he was unable to reconcile the speech recognition and pure tone results. The Veteran reported “a lot of tinnitus” on the day of the examination and had a hard time with the pure tone. In October 2015, the Veteran was provided a VA examination in connection with his increased rating claim. The results of the audiological test are as follows, with puretone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 35db 30db 35db 35db LEFT 35db 35db 35db 40db Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 100 percent bilaterally. The average of the puretones between 1000-4000 Hertz was 26.25 for the right ear and 36.25 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of I for the right ear and I for the left ear. Such a degree of hearing loss warrants a noncompensable rating under Table VII. Because the Veteran’s audiometric results do not reveal an exceptional patter on hearing impairment, Table VIa is not for application. 38 C.F.R. § 4.86. The Veteran was afforded a third VA examination in March 2017. The examiner was unable to test puretone thresholds at any frequency. The examiner noted that the Veteran was reinstructed and retested several times with consistently unreliable results. Specifically, the examiner found that speech recognition testing was performed, and the Veteran was able to respond to speech at a level below the level at which he claimed to hear tones. The examiner explained that correctly identifying speech is much more complicated than responding to pure tones; and thus, the Veteran should not be able to respond to speech at a lower level. The examiner found that other testing also revealed that hearing was better than reported. The claim was remanded to reconcile the drastic difference in results from the September 2015 examination. The Veteran was notified of the need for a new VA examination. On October 8, 2019, the AOJ contacted the Veteran to schedule a November VA examination to assess the severity of his hearing loss. The Veteran notified the VA that he was “fed up with the entire process” and was “cancelling all exams.” He informed the caller that he would not be attending any examinations. Thus, as there is no evidence showing good cause for the failure to report to the November 2019 exam, the Board must decide the appeal based on the evidence of record. 38 C.F.R. § 3.655 (a)(b). Based on the above, the Board finds that the claim for an initial compensable rating must be denied. Although the private September 2015 examination indicated more severe hearing loss, the audiologist noted that the puretone examination results were inconsistent with the speech recognition results. Importantly, the September 2015 audiologist attributed the inconsistencies to interference from the Veteran’s service-connected tinnitus for which he is already receiving separate compensation. Similarly, the March 2017 VA examiner deemed the puretone results inconsistent and unreliable. Importantly, the examiner explained that the Veteran’s speech recognition results revealed the Veteran’s hearing loss was not as severe as indicated by recent puretone results. The record contains lay reports regarding difficulty hearing. However, this is of little probative value as the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. Accordingly, the examinations of record are afforded great probative value in determining the Veteran’s level of hearing impairment. Accordingly, there is no competent evidence of record that the Veteran’s hearing loss warranted other than the initially assigned 0 percent rating for the entire period on appeal. The Board had also considered whether an extraschedular rating is warranted for the service-connected bilateral hearing loss during the relevant period on appeal based on the Veteran’s assertions of how his hearing loss impacts his daily life. 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, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2016). The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. 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) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). 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. Thun, 22 Vet. App. at 116. 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. With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The schedular rating criteria for rating hearing loss provide for disability ratings based on audiometric evaluations, to include speech discrimination and pure tone testing. Here, all the Veteran’s hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria. The Veteran’s hearing loss disability has manifested in difficulty hearing conversations, needing to regularly ask others to repeat themselves, and having to turn the television volume up louder than normal. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high pitched sounds. The ability of the Veteran to understand people and having to ask others to repeat themselves on a regular basis is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns as measured by both audiometric testing and speech recognition testing. See Doucette, 28 Vet. App. 366 (holding “that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”). The Board acknowledges the Veteran has been unable to complete recent puretone testing due to his service-connected tinnitus. However, in light of the Veteran’s unwillingness to appear at further VA examinations, the Board must base its rating on the reliable pure tone averages of record. The Board notes that decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999. See 64 Fed. Reg. 25,202 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran’s Health Administration (VHA) in developing criteria that contemplated situations in which a veteran’s hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real-life industrial setting. 59 Fed. Reg. 17,295 (Apr. 12, 1994). (Continued on the next page) The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran’s difficulties functioning in a social environment due to hearing loss. Accordingly, the Board finds that the Veteran’s reported hearing related difficulties are factors contemplated in the regulations and schedular rating criteria and referral for extraschedular consideration is not warranted. See also Doucette, 28 Vet. App. 366 (holding that “the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure... an inability to hear or understand speech or to hear other sounds in various contexts... are contemplated by the schedular rating criteria”). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.