Citation Nr: 21014595 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 11-31 328 DATE: March 15, 2021 ORDER An extraschedular evaluation of an initial compensable rating for bilateral hearing loss prior to February 26, 2020 and in excess of 20 percent thereafter is denied. FINDING OF FACT The extent of the Veteran’s bilateral hearing loss disability is reasonably contemplated by the VA rating schedule. CONCLUSION OF LAW The criteria for an extraschedular initial compensable rating for bilateral hearing loss prior to February 26, 2020 and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, 4.130, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1977to September 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In April 2014, the Veteran and his spouse testified before a Veterans Law Judge who is no longer with the Board. A transcript of that hearing is of record. The Veteran was notified of his right to have a new hearing, but did not elect to do so. Following a February 2017 Board denial, in October 2017, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal. A transcript of that hearing is of record. In April 2018, the Board remanded the Veteran’s case to the agency of original jurisdiction (AOJ) to have his claim referred to the Director of the Compensation Service for extraschedular consideration. Following a denial by the Director, the AOJ confirmed and continued the prior denial and returned the case to the Board. In February 2020, the Board remanded the claim for additional development and consideration of a referral for extra schedular consideration based on the social effects of hearing loss. In November 2019, the Director of Compensation adjudicated and denied the claim for a higher rating on an extraschedular basis. In a September 2020 rating decision, the RO increased the evaluation of bilateral hearing loss to 20 percent disabling, effective February 26, 2020. Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under the applicable DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable DCs. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Entitlement to a compensable rating for bilateral hearing loss prior to February 26, 2020 and in excess of 20 percent thereafter. The Veteran contends that his bilateral hearing loss symptoms are more severe than evaluated and warrant a higher rating. The Veteran has argued that his bilateral hearing loss warrants a higher rating on an extraschedular basis. The Board previously referred the claim for extraschedular consideration, particularly with consideration of the Veteran’s complaints of avoidance of social situations related to his service-connected hearing loss, which are not considered by the rating schedular for hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366, 369-71 (2017). The Court has reaffirmed that the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). However, for the reasons that follow, the Board finds that an extraschedular rating is not warranted. Generally, disability ratings are determined by evaluating the extent to which a veteran’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 VA’s Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, to accord justice in the exceptional case where the criteria in VA’s Rating Schedule is found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service-connected disability is warranted. 38 C.F.R. § 3.321 (b)(1). In this regard, 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 that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321 (b)(1). The 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. He is in receipt of a noncompensable rating for his bilateral hearing loss, from May 29, 2008 and a 20 percent rating from February 26, 2020. As to the first prong, the Board does not find that the Veteran’s symptoms present such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Turning to the social effects of his hearing loss, the Veteran contends that he experiences social isolation due to his difficulties communicating and associated fear of embarrassment. The Veteran testified that his hearing loss impacts his ability to communicate at work. He further testified that his ability to participate in outdoor activities, particularly hunting, has been limited such that he is unable to hunt anymore because he cannot hear the brush moving. He stated that he also is precluded from social activities that include interacting with others because his hearing loss frustrates his conversations with people, so he avoids socializing altogether. He stated that he has great difficulty understanding others, resulting in a loss of confidence and reduced earning potential. See April 2014 Hearing Transcript and November 2011 substantive appeal. He testified that he currently works full time in sales but was laid off 5 years prior for approximately 6 months. He stated that he took a new job in inside sales because he was having difficulty communicating as an outside salesman. He stated that his hearing loss still affects his ability to effectively communicate and work. The Veteran stated that his problems with hearing loss have been brought up in his annual performance evaluation. However, he also indicated that he does not wear his hearing aids at work. His spouse testified that he has difficulty with communication that has worsened over time. See April 2014 Hearing Transcript. The Veteran stated that he lost his sales job in February 2009, and feels it was directly related to his inability to communicate clearly. He stated that he accepted another job after 4 months later, at a fraction of his previous salary. See January 2010 notice of disagreement. March 2015 audiological note showed the Veteran reported difficulty hearing at meetings for work. He also stated he has to use multiple cell phone and landline phones for work and has difficulty hearing on them. During a May 2015 VA examination, he reported difficulty hearing in meetings and on cell phones, which he uses a significant amount of time for work purposes. The Board finds that the Veteran’s statements concerning the functional impacts his hearing loss had are competent and credible. The Board acknowledges the Veteran’s reports of difficulty hearing and the resulting discomfort, to include embarrassment and social anxiety, in most situations without hearing aids and sometimes in situations with hearing aids. Even after considering such contentions as to the effects of the disability on his daily life and occupation, the Board finds that the criteria for a higher rating are not met. See Lendenmann, 3 Vet. App. at 349 (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). The Rating Schedule contemplates such impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10; see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Applying the evidence 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 understanding conversations—to include in social settings, difficulty hearing during recreational activities—such as hunting, difficulty hearing on the telephone, and difficulty hearing at work. Further, the Veteran was not able decipher what people were telling him or instructions he was given, which was one reason he stated he was demoted at his job. 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, and 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 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 setting. 59 Fed. Reg. 17,295 (Apr. 12, 1994). 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. 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 … 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”). Turning to the Veteran’s symptoms of depression and anxiety due to his hearing loss, such specific symptoms are not contemplated in the rating schedule to be a symptom associated with hearing loss, but are instead indicated by the rating schedule to be symptoms of a mental disorder, which is a separately compensable disability distinct from hearing impairment (DC 6100) and would be rated in accordance with the schedular criteria for a mental disorder under 38 C.F.R. § 4.130 (2016), provided it is present in the Veteran and determined to be service connected. The February 2020 Board remand, citing to Morgan v. Wilkie, 31 Vet. App. 162 (2019), directed that the AOJ consider a separate rating for any separately diagnosed psychiatric disability attributable to the service-connected hearing loss. The Board notes that following remand, the Veteran was granted service connection for adjustment disorder with anxiety and depression as secondary to service-connected bilateral hearing loss, with an evaluation of 50 percent effective May 29, 2008. See September 2020 rating decision. The RO granted the rating from the date of the claim for increase for hearing loss. Therefore, even though the Veteran’s symptoms of depression and anxiety are not contemplated under hearing loss, the Veteran is nonetheless compensated for those symptoms under a different diagnostic code, wherein such symptoms are specifically contemplated as associated with his hearing loss. The Veteran is already in receipt of a disability rating for the emotional and mental symptoms associated with his hearing loss which contributed to any social impairment not contemplated by the rating criteria for hearing loss. VA examinations show that in determining factors for secondary service connection for the associated adjustment disorder with anxiety and depression, much consideration was given to reports of social isolation due to his hearing loss. Moreover, any additional symptoms are the basis for the separate evaluation for his secondary disorder, and fully contemplated by such rating criteria. Neither the Veteran nor his representative have provided argument that this separate rating for service-connected psychiatric disability is inadequate to compensate for these separate symptoms. The Board finds that the directives of the prior remand were complied with and that the holding of Morgan was complied with; no additional development is necessary in the Board’s judgment based on review of the relevant procedural history and evidence. The Board also acknowledges that following the most recent Board remand the AOJ granted the 20 percent rating on schedular criteria. The Board has previously limited consideration to extraschedular rating. Review of the record does not reveal error in the schedular rating provided and neither the Veteran nor the representative have cited a basis a specific basis or evidence of a higher schedular rating being warranted. Comparing the Veteran’s disability level and symptomatology of the bilateral hearing loss to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. For these reasons, the Board finds that the record does not establish that Veteran’s bilateral hearing loss is so exceptional or unusual as to warrant an extraschedular rating. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Wilson, 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.