Citation Nr: 21025394 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 20-06 058 DATE: April 28, 2021 ORDER Entitlement to an initial compensable rating for left ear hearing loss, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran’s left ear hearing loss has been manifested by hearing acuity of no worse than Level I hearing. 2. The Veteran's left ear hearing loss manifests in symptoms and functional effects that are contemplated by the schedular rating criteria. CONCLUSION OF LAW The criteria for an initial compensable rating for left ear hearing loss, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1963 to January 1968. This matter originally came before the Board of Veterans’ Appeals (Board) from an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A video conference hearing was held in January 2021. A transcript of the hearing is associated with the claims file. The issue on appeal was previously before the Board in March 2021, when it was remanded for additional development. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The Board finds that there has been substantial compliance with the Board’s previous remand directives and the matter is properly before the Board. Id. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating 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. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing Loss – Legal Criteria The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average" as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Under 38 C.F.R. § 4.85(f), if impaired hearing is service connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation of I, subject to the provisions of § 3.383. An examination for hearing impairment for VA purposes must be conducted by a state licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without hearing aids. 38 C.F.R. § 4.85(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial compensable rating for left ear hearing loss. The Veteran contends that a compensable initial rating is warranted for his left ear hearing loss. During the pendency of this appeal, the Veteran was granted service connection for his right ear haring loss as well. See April 2021 rating decision. A review of the record shows that the Veteran was afforded a VA audiological examination in March 2017. The March 2017 VA examination showed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 25 20 20 25 LEFT 10 25 30 50 70 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 100 percent in the left ear. The pure tone threshold average in the right ear was 23 decibels and 44 decibels in the left ear. Hearing loss will be characterized as “exceptional” if the puretone threshold at 1000, 2000, 3000, and 4000 are each 55 decibels or more; or if the puretone threshold at 1000 is 30 decibels or less and at 2000 is 70 decibels or more. If exceptional hearing loss is present, the numerical designation will be derived using either Table VI OR Table VIa, whichever results in the higher designation. Here, an exceptional hearing loss pattern is not shown. When the puretone threshold averages and the speech recognition score for the right ear from the VA examination in March 2017 are applied to Table VI, the numeric designation of right ear hearing impairment is level I. When the puretone threshold averages and the speech recognition score for the left ear from the VA examination in March 2017 are applied to Table VI, the numeric designation of left ear hearing impairment is level I. When these numeric designations for the right and left ears are applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is shown to be a non-compensable rating. See 38 C.F.R. § 4.85, Diagnostic Code 6100. A new VA examination was afforded to the Veteran post-remand by the Board in March 2021. The March 2021 VA examination showed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 25 25 35 45 LEFT 20 25 35 50 70 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear. The pure tone threshold average in the right ear was 32.50 decibels and 45 decibels in the left ear. Hearing loss will be characterized as “exceptional” if the puretone threshold at 1000, 2000, 3000, and 4000 are each 55 decibels or more; or if the puretone threshold at 1000 is 30 decibels or less and at 2000 is 70 decibels or more. If exceptional hearing loss is present, the numerical designation will be derived using either Table VI OR Table VIa, whichever results in the higher designation. Here, an exceptional hearing loss pattern is not shown. When the puretone threshold averages and the speech recognition score for the right ear from the VA examination in March 2021 are applied to Table VI, the numeric designation of right ear hearing impairment is level I. When the puretone threshold averages and the speech recognition score for the left ear from the VA examination in March 2021 are applied to Table VI, the numeric designation of left ear hearing impairment is level I. When these numeric designations for the right and left ears are applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is shown to be a non-compensable rating. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Therefore, a higher rating for the Veteran’s left ear hearing loss is not warranted. Extraschedular consideration In order for a referral for extraschedular consideration, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability, and whether or not the Veteran’s disability picture is adequately contemplated by the assigned rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); Thun v. Peake, 22 Vet. App. 111, 115 (2008). During the January 2021 hearing, the Veteran testified that he has dizziness and vertigo issues associated with his hearing loss and tinnitus and that the assigned rating doesn’t fully encapsulate his disability. See January 2021 Hearing Transcript. In Long v. Wilkie, Vet. App. No. 16-1537 (2020), in order to facilitate proper analysis of Thun’s first step, the Court provided six non-exhaustive or mandatory guiding principles. First, the sole focus of Thun’s first step is on the ability of the rating schedule to evaluate the veteran’s symptomatology; extraschedular consideration is not applicable to claims that may be properly evaluated with conventional schedular rating tools. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). Second, Thun’s first step deals exclusively with whether the veteran’s symptoms–interchangeably referred to by the Court as “functional impairments”–are exceptional, whereas Thun’s second step considers the functional effects of those symptoms. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Third, where a symptom or impairment is not compensable under the rating schedule, as is the case for psychiatric conditions without a valid DSM-5 diagnosis, see Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020), it also does not warrant extraschedular consideration as this would amount to a backdoor means to obtaining compensation for a condition the rating schedule intends to exclude. Fourth, extraschedular consideration is not warranted for symptoms or effects that lack a nexus to service or to a service-connected disability. Fifth, the Board is only required to discuss the theories of entitlement raised by the veteran or reasonably raised by the record. Sixth, in reviewing the Board’s analysis of referral for extraschedular consideration, the Court will be mindful of the rule against prejudicial error. Thus, a failure of the Board to discuss whether extraschedular consideration is warranted for a particular symptom does not require an automatic remand. A review of the records shows that the Veteran filed a secondary service connection claim in January 2021 for dizziness and vertigo, claiming that the dizziness and vertigo are secondary to his hearing loss and tinnitus. See VA 21-52 6EZ - Fully Developed Claim (Compensation). However, a February 2021 VA examination found that that is no nexus between the Veteran’s hearing loss and tinnitus and dizziness and vertigo. A March 2021 rating decision denied service connection for the condition. As noted above, extraschedular consideration is not warranted for symptoms or effects that lack a nexus to service or to a service-connected disability. See Long, supra. Based on the level of severity and symptomatology of the Veteran’s left ear hearing loss and the established criteria found in the rating schedule as a whole, the Board observes that the Veteran’s disability picture is adequately contemplated by the rating schedule and any functional impairment is not shown to be exceptional in nature. Thus, a referral for an extraschedular rating is not warranted. See Thun, supra; Morgan, supra; Long, supra. The Board has considered the Veteran's lay statements and testimony. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, it is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. This criteria measures hearing acuity directly in a controlled laboratory environment. In this regard, VA audiometric examinations showed no basis for an increased initial rating in the disability evaluation or an extraschedular rating for the Veteran’s left ear hearing loss. The Board does not question the Veteran’s credibility in reporting symptoms he perceives. However, the Veteran is not considered competent, nor credible to assess the relative severity of hearing loss, to include any increase in severity, as doing so involves medical testing and medical knowledge that he not shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.