Citation Nr: 21013719 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 08-27 094 DATE: March 10, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied, to include on an extraschedular basis. FINDINGS OF FACT The symptoms of the Veteran’s bilateral hearing loss are contemplated by the rating schedule; the evidence does not show that his bilateral hearing loss is so exceptional or unusual so as to render the rating schedule inadequate for rating purposes; throughout the appeal the Veteran had no worse than Level I auditory acuity in the right ear and Level II in the left. CONCLUSIONS OF LAW The criteria for a compensable rating for service-connected bilateral hearing loss, to include on an extraschedular basis, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.85, Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970 and from October 1980 to December 1995. In November 2019, the Board denied entitlement to a compensable rating for bilateral hearing loss. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In September 2020, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board’s denial and remanded the matter to the Board for compliance with the instructions included in the parties’ JMR. The JMR finds that the Board failed to provide an adequate statement of reasons or bases regarding whether the Veteran’s bilateral hearing loss disability is contemplated within a noncompensable disability rating. The Court permitted the Veteran to present additional evidence and argument. Entitlement to a compensable rating for bilateral hearing loss is denied. The Veteran contends that his claim warrants a compensable rating for the bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. As outlined in 38 C.F.R. § 38 C.F.R. § 4.85, there are tables for rating purposes to determine a Roman numeral designation based upon a combination of the percent of the speech discrimination and pure tone threshold average. In addition, 38 C.F.R. § 38 C.F.R. § 4.86 provides criteria for the finding of an exceptional pattern of hearing loss. VA hearing loss examinations were provided in August 2006, October 2011, May 2014, and January 2019. As outlined by the Board previously, the Board finds that the October 2011 and May 2014 examinations inadequate for ratings purposes. Review of the adequate examinations of record reflect at worse Level I in the right ear and Level II in the left. This results in a noncompensable rating under the applicable Tables. The record does not reflect an exceptional pattern of hearing loss as defined by 38 C.F.R. § 38 C.F.R. § 4.86. The JMR did not find error with the prior Board’s decision regarding schedular criteria and the Board currently does not find a basis for an increase based on schedular criteria. The JMR found that the Board failed to adequately address the raised issue of extraschedular criteria. The Veteran asserts service-connected blindness causes a greater hearing impairment as he cannot rely on speech reading or visual cues to assist him in understanding conversation. Moreover, his hearing aids trigger headaches. Furthermore, his hearing loss affects his employability and causes functional impairment, to include an impact on his work performance, safety at work and issues with following conversations. See September 2020 appellate brief. The Board notes that the record reflects that the Veteran is legally blind due to Stargardt’s disease bilaterally, for which he is service connected at 100 percent from November 18, 2015. In a September 2016 rating decision, the RO granted a total disability based on individual unemployability as of November 2007 until the 100 schedular criteria are met. An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization render the application of the regular schedular standards impracticable. 38 C.F.R. § 3.321(b)(1). Ordinarily, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. 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 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 those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, 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 v. Peake, 22 Vet. App. 111, 115-16 (2008). Turning to the first step of the extraschedular analysis, the Board notes that extraschedular consideration based on the collective impact or combined effect of multiple disabilities is no longer available as of January 8, 2018. 38 C.F.R. § 3.321(b)(1); 82 Fed. Reg. 57830 (January 8, 2018). Thus, the Board may not consider the collective impact or combined effect of the Veteran’s service-connected blindness and service-connected bilateral hearing loss in its extraschedular analysis. To do so would be in violation of this regulation. Finally, the Board notes that the Veteran has alleged that his disability impacts his work. He stated that his hearing loss has worsened to the point that it affects his performance and safety at work. See November 2006 NOD. He also told a VA examiner that his hearing loss impacts the ordinary conditions of daily life, including his ability to work, by creating difficulty in following conversations. See May 2014 VA examination. He told another VA examiner that his hearing loss impacts the ordinary conditions of his daily life, including his ability to work, by creating difficulty in following normal conversation. See January 2019 VA examination. The Board notes that the rating criteria for hearing loss do not list any specific symptoms or functional effects; rather, VA evaluates this disability through the mechanical application of a veteran’s audiometric testing results to a rating table. Doucette, 28 Vet. App. at 368. This is what was done in this case. The November 2019 Board decision sets out the audiological findings of the January 2019 VA examination, which were found to be adequate and probative, and upon a mechanical application to the rating table, resulted in a noncompensable evaluation. See 38C.F.R. § 4.85(a). The Court has made clear that extraschedular criteria relate to evaluation only when a disability is incapable of evaluation under the rating schedule and found that how a disability specifically impacts an individual Veteran is not relevant to whether a disability is exceptional. An impairment that is not compensable under the rating schedule is not subject to an extraschedular evaluation. See Long v. Wilkie, No. 16-1537 (Decided December 30, 2020). The Board finds that the framework outlined in Long case is instructive here. The lay and medical evidence reflect that the Veteran’s service-connected hearing loss results in hearing difficulty expected of a person with hearing loss. The lay and medical evidence does not reflect that there are manifestations not expected of someone with hearing loss. The contentions regard the specific way in which the disability impacts the Veteran’s daily activities. Although sympathetic to the Veteran’s contentions, the Board finds that 38 C.F.R. § 3.321 does not provide an avenue to a compensable rating under the facts of this case. Thus, the Veteran’s difficulty understanding speech in a work context is insufficient to warrant referral for extraschedular consideration. See also Doucette, 28 Vet. App. at 369. In sum, the Board finds that Veteran’s bilateral hearing loss symptomatology is adequately contemplated by the rating criteria and does not warrant extraschedular considerations for the reasons set forth above. As noted, the Veteran was granted an award of TDIU from November 13, 2007, to November 18, 2015; the award was discontinued as of the date the Veteran was awarded a total disability rating for his vision disability. The Veteran has made contentions that the TDIU should have been considered part and parcel of the increased rating claim for hearing loss and could lead to an earlier date. As the RO granted, and the evidence substantiates, that the Veteran’s TDIU was based on the service-connected eye disability and the evidence does not reflect that the hearing loss disability caused the inability to sustain gainful employment, the Board finds that TDIU was not part and parcel. Further, and important, the current date was assigned based on a finding of when the Veteran last was fully gainfully employed. This is no entitlement to TDIU before this date. For these reasons, the Board finds that there is not a remaining issue of TDIU before it. Harper v. Wilkie, 30 Vet. App. 356 (2018). The Veteran contends that the hearing aids prescribed for his service-connected bilateral hearing loss disability cause headaches. The Court has addressed questions of secondary service connection when considering entitlement to higher rating in the context of discussing extraschedular ratings. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). The Board finds that the holding of Morgan does not lead to further benefits in this case. The claims file does not contain competent evidence that the hearing loss disability has led to a headache disability, and as such the Board finds that the holding of Morgan does not lead to the grant of additional benefits. The Veteran is encouraged to file for secondary service connection if he believes this is an issue that should be further addressed and developed. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.