Citation Nr: 21028925 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-12 052 DATE: May 12, 2021 ORDER Entitlement to an initial, compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's hearing loss is shown to have been manifested by no worse than Level I hearing for the right ear and Level I hearing for the left ear. CONCLUSION OF LAW The criteria for the assignment of an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1985 to February 1989. This matter comes before the Board of Veterans' Appeals (Board) from a November 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an initial, compensable rating for bilateral hearing loss The Veteran seeks a compensable rating for his service-connected hearing loss. Disability evaluations 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 the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's bilateral hearing loss disability is rated under the criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100. Disability ratings for service-connected hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations rendered from audiometric evaluations. 38 C.F.R. § 4.85; Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numerical designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column appropriate for the numeric designation for the level for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level "IV" and the poorer ear had a numeric designation of Level "VII," the percentage evaluation is 20 percent. See 38 C.F.R. § 4.85. Regulations also provide in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide when the puretone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral; and then that numeral will be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. On VA audiology examination in November 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 35 30 35 30 LEFT 25 25 35 40 40 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The examiner diagnosed hearing loss and with respect to functional impact, the Veteran reported that he had lost temporary jobs over it. He noted that he could not hear people when they were walking away from him. Using Table VI, applying the Veteran's November 2014 examination results revealed level I hearing in the right ear and level I hearing in the left ear. Combining these levels according to Table VII results in a 0 percent rating. An exceptional pattern of hearing loss was not demonstrated. On VA audiology examination in November 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 45 45 55 LEFT 35 45 45 45 40 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. With respect to functional impact, the Veteran reported that he had difficulty hearing in the presence of background noise and at a distance. He also had problems hearing the television, telephone, and low voices. Using Table VI, applying the Veteran's November 2016 examination results revealed level I hearing in the right ear and level I hearing in the left ear. Combining these levels according to Table VII results in a 0 percent rating. An exceptional pattern of hearing loss was not demonstrated. The Board has considered the Veteran's statements regarding the severity of his hearing loss and how it impacted his ability to understand in conversation and that he has lost jobs over his hearing loss, and in no way discounts the difficulties that the Veteran experienced as a result of bilateral hearing loss; however, it must be reiterated that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology study of record. Lendenmann, supra. In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To that end, the Veteran's assertions as to the severity of his bilateral hearing loss, though competent and credible, are less probative than the objective audiology studies of record, prepared by skilled professionals, in determining that his bilateral hearing loss does not meet the criteria for an increased rating for any of the periods on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). Further, the examination reports documented above also noted and considered the Veteran's report of the impact his hearing loss had on his ordinary conditions of life including his ability to work. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Finally, the Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1). Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). However, in this case, the Board finds that the record does not show that the Veteran's hearing loss disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). Ordinarily, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. 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 Doucette v. Shulkin, 28 Vet. App. 366 (2017). 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 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 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 v. Peake, 22 Vet. App. 111, 115-16 (2008). Preliminarily, the Board notes that the rating criteria for hearing loss do not list any specific symptoms or functional effects; rather, VA evaluates this disability through the mechanical application of a veteran's audiometric testing results to a rating table. Doucette, 28 Vet. App. at 368. This is what was done above. With regard to the symptomatology reported by the Veteran and shown on examination, to include difficulty hearing in conversations and on the phone, the Court has made clear that extraschedular criteria relate to evaluation only when a disability is incapable of evaluation under the rating schedule and found that how a disability specifically impacts an individual Veteran is not relevant to whether a disability is exceptional. An impairment that is not compensable under the rating schedule is not subject to an extraschedular evaluation. See Long v. Wilkie, 33 Vet. App. 167 (2020). The Board finds that the framework outlined in Long case is instructive here. The lay and medical evidence reflect that the Veteran's service-connected hearing loss results in hearing difficulty expected of a person with hearing loss. The lay and medical evidence does not reflect that there are manifestations not expected of someone with hearing loss. The contentions regard the specific way in which the disability impacts the Veteran's daily activities. Although sympathetic to the Veteran's contentions, the Board finds that 38 C.F.R. § 3.321 does not provide an avenue to a compensable rating under the facts of this case. In addition, to the extent that the Veteran argues that his service-connected tinnitus and service-connected hearing loss combine to make it difficult to hear low voices, the television, or the telephone, VA regulations no longer allow for extraschedular consideration for combined effects of service-connected disabilities. See 82 Fed. Reg. 57830 (December 8, 2017) ("An extra-schedular evaluation may not be based on the combined effect of more than one service-connected disability."). Thus, the Veteran's difficulties understanding speech in daily life, including in a work context is insufficient to warrant referral for extraschedular consideration. See Doucette, 28 Vet. App. at 369. In sum, the Board finds that Veteran's bilateral hearing loss symptomatology is adequately contemplated by the rating criteria and does not warrant extraschedular considerations for the reasons set forth above. Accordingly, the Board concludes that an initial compensable rating for hearing loss is not warranted. The Board is grateful for the Veteran's honorable service, and this decision is not meant in any way to detract from that service. In this case, however, the evidence preponderates against the claim for an increased disability rating for the Veteran's service-connected bilateral hearing loss; thus, an increased rating is not warranted at this time. See 38 U.S.C. § 5107(b). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.