Citation Nr: 21022850 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 07-35 693 DATE: April 19, 2021 ORDER Entitlement to evaluation in excess of 20 percent for bilateral sensorineural hearing loss from June 1, 2009, to include on an extraschedular basis is denied. FINDING OF FACT Since the grant of service connection, the Veteran exhibited no worse than Level IV hearing in the left ear and Level VI hearing in right ear. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for bilateral hearing loss from June 1, 2009, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.385, 5.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1960 to October 1964. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A March 2010 rating decision increased the rating for bilateral hearing loss to 20 percent, effective June 1, 2009. A March 2015 Board decision granted an initial 10 percent rating for the Veteran’s service-connected bilateral sensorineural hearing loss from November 22, 2004 through January 8, 2006 but denied a compensable rating during the period from January 9, 2006 through May 31, 2009, as well as a rating in excess of 20 percent, from June 1, 2009, to include on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1). The Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In December 2015, the Court granted the parties’ joint motion for partial remand (JMR) and remanded the matter to the Board for development consistent with the JMR. The matter was previously remanded by the Board for additional development in June 2011, April 2012, October 2013, February 2016, March 2017, September 2017, and August 2019. Most recently, in October 2020, the Board remanded the claim for additional development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). 1. Entitlement to evaluation in excess of 20 percent for bilateral sensorineural hearing loss from June 1, 2009, to include on an extraschedular basis The Veteran seeks a higher rating for bilateral hearing loss. He contends that the symptomatology of his bilateral hearing loss warrants assignment of a higher rating, to include that assignment of an extraschedular evaluation is warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. 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). 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 speech discrimination test (Maryland CNC) 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). “Puretone threshold average” is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven 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, VIa and VII, Diagnostic Code 6100. Under certain exceptional patterns of hearing impairment, auditory acuity levels may be calculated using either TABLE VI, as described above, or TABLE VIA, which derives a Roman numeral designation based solely on the puretone audiometry test. 38 C.F.R. § 4.86. The TABLE that produces the higher Roman numeral will be used. Id. These auditory acuity levels are entered into TABLE VII of the rating schedule to determine the percentage disability rating. 38 C.F.R. § 4.85. The Veteran was afforded a VA audiology examination in June 2009. The Veteran reported hearing loss, with difficulty understanding conversation. The examiner noted significant occupational effects, including memory loss, decreased concentration, inappropriate behavior, poor interaction, difficulty following instructions, and hearing difficulty. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 60 70 75 LEFT 45 50 65 75 80 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 72 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level VI in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran was afforded a VA examination in August 2009. The Veteran reported vertigo and complaints of lightheadedness that comes and goes without warning. Physical examination was within normal limits with neither ventral nor peripheral signs of vertigo or imbalance. Otoscopic findings in each ear were normal. Underlying VA treatment records do not reveal persistent vertigo complaints. VA treatment records reflect the Veteran underwent an audiological evaluation in April 2014. However, a June 2019 VA addendum report by an audiologist indicated that speech discrimination testing at the evaluation was not performed using the Maryland CNC word list, as that list is routinely used only for VA Compensation and Pension evaluations. Accordingly, this evaluation is not adequate for rating purposes. 38 C.F.R. § 4.85(a). In March 2016, a VA audiologist reviewed the claims file and offered an addendum opinion. The examiner found that the June 2009 VA examination report of occupational symptoms was a listing or recitation of problems as given by the Veteran, and was not a medical opinion. The examiner indicated that it was outside the scope of practice for Audiology to offer a medical opinion on the reported symptoms. Despite this determination, the examiner then proceeded to render a medical opinion and the May 2017 Board remand determined that the opinion was inadequate. In May 2017, a VA examiner reviewed the claims file and offered an addendum opinion. The examiner opined that it is less likely as not the Veteran’s reported symptoms of memory loss, decreased concentration, inappropriate behavior, poor social interactions, and sleep trouble, are attributable to his service-connected bilateral sensorineural hearing loss. Regarding symptoms of hearing difficulty and difficulty understanding conversation, the examiner found these symptoms fall under the topic of hearing rather than mental health, and deferred to the audiologist who could provide expertise in that area. The examiner explained that the Veteran’s earliest visits to the mental health clinic indicated treatment for depression and this appeared to be related to chronic pain and family problems. Diagnoses included adjustment disorder with depressed mood and depression not otherwise specified (NOS). During that same year, the Veteran also had his initial audiology appointment for what appeared to be a gradual hearing loss. The examiner also found it worth noting that there were no report of symptoms of memory loss, decreased concentration, inappropriate behavior, poor social interactions, or sleep trouble at the time. His only mental health symptom was depression, and it was attributable to pain and family problems and not attributable to bilateral hearing loss. The Veteran’s history of psychiatric conditions, as well as well as sleep problems starting in childhood and a sleep study showing mild sleep apnea in 2010 and “unspecified insomnia”, were duly noted by the examiner; however, they had no relationship to his bilateral sensorineural hearing loss. These are separate conditions with no nexus to his hearing loss. The Veteran was afforded a VA examination in June 2017. The Veteran reported that he could not hear TV or someone knocking at his door. He stated that it was hard to understand what people say, and that he had to ask people to repeat what they had said. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 60 70 80 LEFT 40 45 65 75 80 Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 80 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In April 2019, a VA psychologist reviewed the claim file and offered an addendum opinion. The examiner opined that the Veteran did not meet criteria for DSM-IV or DSM-V diagnosis at that time. Therefore, the examiner concluded the claimed condition is less likely than not proximately due to or the result of the service-connected hearing loss. The Veteran did not indicate any difficulty sleeping. In November 2019, a VA audiologist reviewed the claim file and offered an addendum opinion. The examiner opined that it is as likely as not the Veteran’s decreased concentration, poor social interaction, difficulty following instructions, difficulty understanding conversations, and sleep troubles are due to the Veteran’s hearing loss. The examiner explained that these are all generally known to be common effects of hearing loss. The examiner indicated that it was possible the Veteran’s diagnosed psychiatric disorder was also a factor, but that a specific statement on the degree of impact would be more appropriately addressed by a medical professional in mental health. In December 2020, a VA audiologist reviewed the claim file and offered an addendum opinion. The examiner opined it is as likely as not the Veteran’s decreased concentration, poor social interaction, difficulty following instructions, hearing difficulty, difficulty understanding conversations, and sleep troubles are symptoms or outgrowths of his hearing loss. The examiner explained these symptoms are all generally conceded to be common effects of hearing loss. In January 2021, a VA psychologist reviewed the claim file and offered an addendum opinion. The examiner opined that it is less likely than not the symptoms of memory loss and inappropriate behavior are solely attributable to the Veteran’s service-connected bilateral hearing loss. The examiner explained that the Veteran had a long history of mental health treatment for conditions associated with memory loss and inappropriate behavior. A review of the Veteran’s mental health records indicated that the Veteran had been diagnosed and treated for several mental health conditions that are known to be associated with memory loss and inappropriate behavior including adjustment disorder, anxiety disorder, depressive disorder, and insomnia. Based on the audiological evaluation of record, the Veteran’s bilateral hearing loss does not approximate the criteria more nearly corresponding to a rating in excess of 20 percent. The Board does not discount the Veteran’s assertion that his difficulty hearing has affected his ability to interact socially, follow instructions, and understand conversations in various contexts; however, schedular disability ratings for hearing loss are based on the results of the objective audiological studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In a January 2016 Appellate Brief, the Veteran’s representative characterized the issue on appeal as entitlement to a higher initial rating, to include consideration of an extraschedular rating under 38 C.F.R. § 3.321 and 4.16. A March 2021 Appellate Brief argued that the symptomatology associated with the Veteran’s service-connected conditions presents a greater degree of impairment than the currently assigned evaluations would indicate. The representative contended that the Veteran’s symptoms of memory loss, decreased concentration, inappropriate behavior, poor social interaction, and hearing difficulty warrant assignment of an extraschedular rating. The Board finds the rating schedule is adequate to evaluate the Veteran’s disability picture. Under Thun v. Peake, 22 Vet. App. 111 (2008), 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 the service-connected disabilities are inadequate. Second, if the schedular evaluations do not contemplate the Veteran’s level of disability and symptomatology and are 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 Director of Compensation to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. In regard to the first element, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Board gives most probative weight to the VA psychologists’ opinions, especially the January 2021 VA opinion. The Board finds the VA psychologists’ opinions are highly probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and include extensive supporting data. The VA examiners’ opinions are also significantly more probative due to the level of detailed review of the Veteran’s medical history and comprehensiveness of the rationales provided. Further, the psychologists’ expertise as a subject matter expert in mental health rendered their opinion highly persuasive in particular. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the May 2017 and January 2021 VA examiners’ opinions outweigh the March 2016, November 2019, and December 2020 VA audiology opinions. The Board finds the March 2016, November 2019, and December 2020 audiology opinions to be of limited probative value. While the opinions indicate consideration of the Veteran’s symptoms in relation to his sensorineural hearing loss; the examiners also stated that it was outside the scope of the practice of audiology to offer medical opinion with relation to the specific mental health symptoms noted or that it would be more appropriate to have a medical professional such as a psychologist or psychiatrist make a statement on the issue. The Board further notes that, to the extent the opinions are favorable, all three opinions appear to be based on the determination that some of the symptoms reported by the Veteran are common and known to be associated with sensorineural hearing loss. The Board gives no probative weight to the April 2019 VA opinion. The examiner opined the Veteran’s claimed symptoms are less likely than not proximately due to or the result of the service-connected hearing loss. The issue of secondary service connection for an acquired psychiatric disability is not before the Board. Consequently, the Board gives no probative weight to the April 2019 VA opinion. The evidence of record does not show that the currently assigned evaluation for hearing loss is inadequate due to exceptional or unusual circumstances. Although the Veteran’s specific symptoms are not mentioned in 38 C.F.R. Part 4, they are not considered to be outside of the normal symptoms for individuals suffering from this disability. In this regard, the March 2016, November 2019, and December 2020 VA audiologists found that the Veteran’s symptoms of difficulty with concentration, social interaction, following instruction, understanding conversation, and sleep difficulties, were known to be common effects of hearing loss or tinnitus. Additionally, the evidence fails to support an extra-schedular evaluation based on the average earning impairment that is due to his service-connected hearing loss. In Doucette v. Shulkin, the United States Court of Appeals for Veterans Claims has made clear that a Diagnostic Code need not list every word or type of symptom to contemplate a type of functional effect. For instance, problems with understanding conversation, following instruction, and sleeping difficulties are not listed in the diagnostic code for hearing loss but are nonetheless contemplated because they are the actual effects of the hearing loss in daily life. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Doucette decision by extension shows that the symptoms of the Veteran’s hearing loss and its functional effects are contemplated by the rating schedule for evaluating the disability. Assuming arguendo that the rating criteria do not cover the symptomatology of his hearing loss, the Board finds no probative evidence that the impaired sleep symptom causes “marked” interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. at 116; see also 38 C.F.R. § 3.321 (b)(1). The June 2009 VA examiner noted that the Veteran reported that his hearing loss affected occupational activities, basing on the Veteran’s report that he had difficulty with memory loss, decreased concentration, inappropriate behavior, poor social interactions, and difficulty following instructions. However, this is not tantamount to a “marked” interference with employment. Some interference with employment is already contemplated by the disability rating assigned for the Veteran’s hearing loss. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired.). Indeed, the Board finds that any interference with work is proportional to the severity of his hearing loss. Further, to the extent the Veteran attributes mental health symptoms, such as inappropriate behavior, to his bilateral hearing loss he is not competent to make such a determination because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board accords more probative value to medical psychologists trained to perform testing and interpret testing results in relation to symptoms of inappropriate behavior. The Veteran has not otherwise described any specific examples of how there is a significant, much less marked, interference with his ability to work. Moreover, the claim file is silent as to any record of hospitalization due to his hearing loss. In sum, the Board recognizes that hearing loss has some impact on the Veteran’s life, including his ability to understand conversation, follow verbal instruction, and sleep through the night. The evidence does not, however show, that his symptoms would interfere with occupational duties in a way that would cause marked interference with employment. His hearing loss symptoms also have not caused him to be frequently hospitalized. For these reasons, the Board finds that an initial rating in excess of 20 percent for hearing loss, to include on an extraschedular basis, is not warranted. In reaching the conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against a higher schedular rating or an extraschedular rating, that doctrine is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. JESSICA SEAY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.