Citation Nr: 21028844 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-43 903 DATE: May 12, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss prior to January 18, 2019 is denied. Entitlement to a disability rating higher than 50 percent for bilateral hearing loss from January 18, 2019 is denied. FINDINGS OF FACT Prior to January 18, 2019 the Veteran's hearing loss disability has been manifested by hearing acuity no worse than level IV in the right ear and level II in the left ear. Since January 18, 2019 the Veteran's hearing loss disability has been manifested by hearing acuity no worse than level XI in the right ear and level VI in the left ear. The Veteran's hearing loss does not present such an exceptional disability picture that it renders the rating schedule inadequate. CONCLUSIONS OF LAW Prior to January 18, 2019 the criteria for a compensable disability rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.85, 4.86, Diagnostic Code (DC) 6100. Since January 18, 2019 the criteria for a disability rating higher than 50 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321(b)(1), 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1970. In January 2019, he testified at a videoconference hearing held before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The case was remanded by the Board in May 2019 for additional development. A June 2020 rating decision granted service connection for tinnitus. The Agency of Original Jurisdiction's (AOJ) grant of service connection for this issue constitutes a full award of benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The Veteran has not initiated an appeal with respect to the effective date assigned and has provided no additional argument. Therefore, as the AOJ granted the benefit sought on appeal, this issue is no longer before the Board. Shoen v. Brown, 6 Vet. App. 456 (1994). Increased Ratings The Veteran is seeking increased disability ratings for his bilateral hearing loss. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's bilateral hearing loss is currently rated as 50 percent disabling under DC 6100, effective January 18, 2019 and prior to that date was rated as noncompensable. Under DC 6100 the criteria for evaluating hearing impairment uses puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Audiometric results are matched on Table VI to find the numeric designation. Then, the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. 38 C.F.R. § 4.85. The provisions of section 4.86 address exceptional patterns of hearing loss which are identified when each of the puretone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. prior to January 18, 2019 Applying the above regulations here, the Board finds that the criteria for a compensable disability rating are not met prior to January 18, 2019. In support of his claim, the Veteran submitted a private audiological evaluation. See audiogram from River Cities ENT Specialists, dated March 26, 2014. Unfortunately, the report does not conform to VA's requirements for evaluating hearing impairment in that the numerical value for pure tone results at the frequency for 3000 Hz for the right ear were not reported. The Board notes that while the Maryland CNC was not identified as the test used to obtain speech recognition scores, the Veteran's speech discrimination ability was 100 percent for both ears. A June 2015 VA audiological evaluation shows puretone thresholds in decibels for the Veteran's right ear at 1000, 2000, 3000, and 4000 Hz were: 20, 30, 35, 70, and 70, for an average of 51 and for his left ear, at those same frequencies, were: 15, 30, 50, 70, and 70, for an average of 55. Speech discrimination scores were 80 percent of the right ear and 90 percent for the left ear. Using Table VI, these examination results revealed level IV impairment in the right ear and level II impairment in the left ear. Combining these levels according to Table VII results in a noncompensable (0%) evaluation. 38 C.F.R. § 4.85. These audiological results also do not satisfy the criteria for a compensable rating due to an exceptional hearing loss pattern. 38 C.F.R. § 4.86. The remaining evidence of record for this time period does not show that the Veteran has sought medical treatment for hearing loss on any regular basis. So, there are no subsequent audiograms or other comprehensive information to show a more severe hearing loss disability than is contemplated by the current 0 percent rating. Accordingly, prior to January 18, 2019, the impairment due to bilateral hearing loss is most consistent with a noncompensable schedular evaluation. since January 18, 2019 The current 50 percent disability rating is based on findings from a January 2, 2020 VA examination which shows pure tone thresholds in decibels for the right ear at 1000, 2000, 3000, and 4000 Hz were: 15, 25, 35, 75 and 75, for an average of 53, and for his left ear, at those same frequencies, were: 20, 30, 45, 70, and 90, for an average of 59. Speech discrimination scores were 28 percent in his right ear and 60 percent in his left ear. Using Table VI, these examination results revealed level XI hearing in the right ear and level VI hearing in the left ear. Combining these levels according to Table VII results in a 50 percent evaluation. See 38 C.F.R. § 4.85. These audiological results also do not satisfy the criteria for a compensable rating due to an exceptional hearing loss pattern. 38 C.F.R. § 4.86. Accordingly, the Board finds that the Veteran's impairment due to hearing loss for the period since January 18, 2019 is most consistent with a 50 percent evaluation. Consideration is given to the functional effects of the Veteran's bilateral hearing loss. Despite any general quality of life problems, he may experience, hearing loss disability is evaluated on the objective findings demonstrated during audiological examination. Just because his hearing acuity may be less than optimal does not, by itself, establish entitlement to a higher disability rating. In fact, it is clear from the Rating Schedule that higher ratings can be awarded only when loss of hearing has reached a specified measurable level. That level of disability has not been demonstrated in the present case. The 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. Lendenmann, supra. Extraschedular Consideration The Board has also considered whether the Veteran is entitled to increased ratings for his bilateral hearing loss disability on an extraschedular basis. 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); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical). The Court has set out a sequential three-step analysis, based on the language of 38 C.F.R. § 3.321(b)(1), to determine whether to refer a case for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Step one is to determine whether the schedular rating adequately contemplates a claimant's disability picture. If the criteria reasonably describe the disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral to the Under Secretary for Benefits or the Director, Compensation Service for consideration of an extraschedular rating is required. If, however, the schedular criteria do not contemplate the claimant's level of disability and symptomatology and are therefore found to be inadequate, step two is to determine whether the claimant's disability picture is exceptional, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular criteria. If the claimant's disability picture meets this second step, then the third and last step is to remand the claim to the AOJ for referral to the Director, Compensation Service (Director) to determine whether an extraschedular rating is warranted. It was noted that during his January 2019 video conference hearing, the Veteran had difficulty understanding his representative as well as the judge conducting the hearing, often asking the speaker to repeat the question. The Veteran also testified that he had difficulty understanding different pitches and accents. At his June 2015 VA examination, he stated that he misses certain words or pitches when conversing with people or when listening to television programs. He also reported that he was given hearing aids several years ago but became disgusted and returned them. At his most recent VA examination in 2020, the Veteran reported trouble understanding people and difficulty following and participating in conversations due to his hearing loss. He reported watching the television at a high volume and that he has his neighbors listen to his phone recordings because he cannot hear them. The evidence in this case does not show such an exceptional disability picture that the assigned schedular evaluations for the service-connected hearing loss are inadequate. The Veteran does not argue, and the evidence does not suggest, that his bilateral hearing loss manifests in symptoms other than diminished hearing acuity. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's hearing loss in that the ratings are intended to compensate for exactly the symptoms he has reported, difficulty hearing pitch and understanding speech including difficulty using the telephone. The Veteran does not argue, and the evidence does not reflect, that he has experienced symptoms outside of those contemplated by the rating schedule under DC 6100. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). The Board finds that all symptoms identified by the Veteran have been specifically contemplated by the criteria for the current 0 and 50 percent ratings that he is already receiving. There are no symptoms attributable to his service-connected hearing loss that are left uncompensated or unaccounted for by the assignment of schedular rating. There is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's "threshold" finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). As such, referral for extraschedular consideration is not warranted. For the foregoing reasons, the preponderance of the evidence is against higher disability ratings, to include on an extraschedular basis, for bilateral hearing loss and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bryant, Jeana R 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.