Citation Nr: 21014088 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 20-05 092 DATE: March 11, 2021 ORDER A rating higher than 10 percent for tinnitus is denied. A compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran is assigned the maximum schedular rating for tinnitus, and his tinnitus does not result in any manifestations which render the applicable rating criteria inadequate. 2. At worst, the Veteran had level II hearing in both ears, and his hearing loss does not result in any manifestations which render the applicable rating criteria inadequate. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.87, Diagnostic Code (DC) 6260. 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from November 1953 to October 1955 and from November 1955 to December 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision. It was previously remanded by the Board in April 2020. Duty to Assist Initially, the Board notes that the Veteran’s representative had previously requested the curriculum vitae (C.V.) of the examiner who conducted a February 2018 VA audiological examination. The April 2020 remand instructed the Agency of Original Jurisdiction (AOJ) to obtain this information. However, as detailed in a January 2021 letter to the Veteran, the AOJ was unable to obtain the examiner’s C.V. The Veteran underwent an additional VA examination in August 2020, and in September 2020, the Veteran’s representative requested a copy of that examiner’s C.V. as well, along with a copy of the examination report. The report was provided in November 2020 as part of a Privacy Act Request. However, the Board will reject this second request because the Veteran’s representative has failed to raise any specific challenge to either the competency of the examiners individually or to the competency of audiologists generally in the context of a hearing loss and tinnitus examination. See Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010) (explaining that a veteran challenging the qualifications of a VA-selected physician must set forth specific reasons why the veteran believes the expert is not qualified to give a competent opinion). The Board notes that Bastien was overruled to the extent it conflicts with Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), but that is not the case here. Francway acknowledged that a challenge to the competency of an examiner requires some degree of specificity. Id. at 1307 (citing Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013)). Neither the Veteran nor his representative have alleged any specific error in the conduct of the VA examinations that resulted in any prejudicial error. See Francway, supra, at 1308 (veteran bears the burden of showing prejudicial error). Increased Ratings 1. Tinnitus The Veteran is currently assigned a 10 percent rating for his tinnitus under 38 C.F.R. § 4.87, DC 6260. This is the maximum schedular rating available. The Veteran and his representative have asserted that an extraschedular rating is warranted. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran’s service-connected conditions in considering if the Veteran is entitled to an extraschedular rating. According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub. nom. Thun v. Shinseki, 573 F.3d 1366 (Fed Cir. 2009), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. The Board finds that the first prong of Thun has not been satisfied because the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected tinnitus is inadequate. During his October 2017 and August 2020 VA examinations, the Veteran reported that tinnitus affected his sleep. While the Board acknowledges these statements, the Veteran is presently service-connected for a trauma and stressor-related disorder, rated at 50 percent. The rating criteria for this psychiatric disability contemplate symptoms of sleep impairment. See 38 C.F.R. § 4.130. Moreover, VA examinations from March 2014 and June 2016 specifically noted findings or complaints of sleep impairment associated with this condition. Therefore, to the extent the Veteran experiences any sleep impairment, that manifestation is already compensated under his assigned rating for a trauma and stressor-related disorder and does not trigger an extraschedular evaluation for tinnitus. Otherwise, the Veteran only reported that tinnitus affected his ability to hear people and have conversations, which is inherent in the assigned 10 percent schedular rating. Cf. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, the Veteran’s tinnitus does not result in any manifestations which render the applicable rating criteria inadequate, and an extraschedular rating is not warranted. 2. Bilateral hearing loss The Veteran is currently assigned a 0 percent (noncompensable) rating for his bilateral hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. The Veteran underwent a VA examination in October 2017. Pure tone thresholds, in decibels, were as follows:   HERTZ 1000 2000 3000 4000 Average RIGHT 35 30 35 50 38 LEFT 40 40 45 60 46 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 92 percent in the left ear. Under Table VI, this results in a hearing level of I in both ears, which corresponds to a 0 percent rating under Table VII. An additional VA examination was conducted in February 2018. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 30 35 50 38 LEFT 40 40 45 60 46 Speech audiometry revealed speech recognition ability of 90 percent in the right ear and 90 percent in the left ear. Under Table VI, this results in a hearing level of II in both ears, which corresponds to a 0 percent rating under Table VII. Finally, the Veteran underwent a VA examination in August 2020. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 40 45 55 46 LEFT 50 50 45 50 49 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 94 percent in the left ear. Under Table VI, this results in a hearing level of II in the right ear and I in the left ear, which corresponds to a 0 percent rating under Table VII. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted because the Veteran’s audiological testing consistently showed a noncompensable level of hearing loss. The Veteran and his representative asserted that an extraschedular rating may be warranted for hearing loss. However, during all three VA examinations of record, the Veteran only reported difficulties related to hearing impairment, such as not hearing his phone or asking people to repeat themselves. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. In other words, the functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). There is no indication that his hearing loss results in any symptoms which fall outside the scope of the rating criteria for DC 6100, and therefore an extraschedular rating is not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.