Citation Nr: 21031748 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 12-06 097 DATE: May 24, 2021 ORDER 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to May 13, 2017, to include consideration on an extraschedular basis, is denied. 2. Entitlement to a rating in excess of 50 percent for bilateral hearing loss from May 13, 2017, to include consideration on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran's hearing loss disability has been productive of a puretone threshold average of 67.5 decibels (dB) in the right ear and 62.5 dB in the left ear and speech recognition ability using the Maryland CNC Test of 78 percent in the right ear and 80 percent in the left ear prior to May 13, 2017. The Veteran's hearing loss symptoms are contemplated by the rating criteria. 2. The Veteran's hearing loss disability has been productive of a puretone threshold average of 73.75 decibels (dB) in the right ear and 75 dB in the left ear and speech recognition ability using the Maryland CNC Test of 56 percent in the right ear and 56 percent in the left ear from May 13, 2017. The Veteran's hearing loss symptoms are contemplated by the rating criteria. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bilateral hearing loss prior to May 13, 2017, to include consideration on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. 2. The criteria for a rating in excess of 50 percent for bilateral hearing loss from May 13, 2017, to include consideration on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to March 1969. In February 2017, the Veteran testified at videoconference a hearing before Veterans Law Judge (VLJ) Hawley. In March 2021, the Veteran was notified VLJ Hawley has retired and offered the opportunity to have a new hearing before another VLJ if he responded within 30 days. To date, the Veteran has not responded to this letter; therefore, the Board presumes he does not wish to have a new hearing. In May 2017, the Board remanded the claims for an increased rating for bilateral hearing loss and status post-surgery with scar and deformed duodenal bulb for updated VA treatment records including missing VA audiograms, new VA examinations, and referral to the Director of Compensation Service for consideration of entitlement to extraschedular consideration for bilateral hearing loss. In April 2019, the Director of Compensation Service denied an increased rating for bilateral hearing loss on an extraschedular basis. In July 2019, the Board granted the claim for an increased rating for status post-surgery with scar and deformed duodenal bulb and again remanded the claim for an increased rating for bilateral hearing loss for missing VA audiograms. In May 2020, the Board again remanded the claim for an increased rating for bilateral hearing loss for missing VA audiograms. The Board finds there was substantial compliance with this development. The claim for an increased rating for bilateral hearing loss now returns to the Board for further appellate review. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of puretone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R.§ 4.85(c). 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to May 13, 2017, to include consideration on an extraschedular basis. The Veteran testified in February 2017 that his bilateral hearing loss has worsened. He testified that he had to quit his job as a pastor due to an inability to hear prayer requests or respond to people properly. Although he has used hearing aids since 2010, he still struggles to hear. The Veteran feels hearing tests are not a proper presentation of his hearing loss because it is conducted in a single room without other sounds or anything to destroy or distort what he is hearing which is not his experience in his day to day life. He tries to face the person speaking, so he can pick up on that or the sound, and words are distorted and unclear. The Veteran was granted service connection for bilateral hearing loss in an April 2009 rating decision with a 20 percent rating effective May 16, 2008, the date of claim. An April 2012 Statement of the Case reduced the rating to 10 percent as a result of an incorrect application of the hearing tables in 38 C.F.R. §§ 4.85 which resulted in clear and unmistakable error. A November 2017 rating decision increased the rating for bilateral hearing loss to 50 percent effective May 13, 2017, the date of the VA examination showing an increase in disability was warranted. The Veteran underwent a VA audiological examination in January 2012, during which his audiogram showed that the puretone thresholds in dB, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 50 65 105 67.5 LEFT 45 55 70 80 62.5 Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 78 percent in the right ear and 80 percent in the left ear. The Veteran stated that the functional impact of his hearing loss was that he had difficulty hearing and understanding speech. The Board previously remanded for audiograms from the VA Medical Center in Atlanta. However, the audiograms from February 2010, August 2011, November 2014, and June 2015 are all labeled with, "Not adequate for rating purposes." In looking at these audiograms carefully, it shows the Maryland CNC test was not used in evaluating the Veteran's hearing on those four occasions, which is the speech discrimination testing required for evaluating hearing loss for VA purposes. Thus, this explains why they were determined to be, "Not adequate for rating purposes." Therefore, they cannot be considered in connection with the Veteran's claim for an increased rating. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a disability rating in excess of 10 percent for the bilateral hearing loss disability prior to May 13, 2017. The Board has considered the Veteran's statements and complaints, and the Board will discuss extraschedular consideration for the Veteran's bilateral hearing loss disability below. On the January 2012 audiogram, the right ear had a puretone threshold average of 67.5 dB and speech discrimination of 78 percent which corresponds to a designation of IV in Table VI, 38 C.F.R. § 4.85. Similarly, the left ear had a puretone average of 62.5 dB and speech discrimination of 80 percent, it receives a designation of IV. See id. The intersection of designations IV and IV on Table VII establishes that the Veteran's hearing loss disability is entitled to a disability rating of 10 percent. See 38 C.F.R. § 4.85, DC 6100. The Board will proceed to consider whether the Veteran is entitled to an extraschedular rating for his service-connected bilateral hearing loss. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as "marked interference with employment" or "frequent periods of hospitalization." 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 determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. With respect to the first prong of Thun, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's bilateral hearing loss is inadequate. For example, the Veteran testified that he left his job as a pastor because of an inability to understand speech during prayer requests or when responding to people. The inability to hear or understand speech is contemplated by the rating criteria for 38 C.F.R.§ 4.85. 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 are contemplated by the schedular rating criteria for hearing loss). Accordingly, the first prong of Thun is not met; and therefore, an increased rating on an extraschedular basis is not warranted. For the reasons laid out above, the Board finds the preponderance of the evidence is against a rating in excess of 10 percent for a bilateral hearing loss disability prior to May 13, 2017. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not applicable, and the Veteran's claim for an increased rating for this part of the appeal period is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to a rating in excess of 50 percent for bilateral hearing loss from May 13, 2017, to include consideration on an extraschedular basis. The Veteran contends his bilateral hearing loss warrants a higher rating. The Veteran underwent a VA audiological examination in May 2017, during which his audiogram showed that the puretone thresholds in dB, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 55 60 80 100 73.75 LEFT 60 70 70 100 75 Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 56 percent in the right ear and 56 percent in the left ear. The Veteran stated that the functional impact of his hearing loss was that he had difficulty hearing prayer requests and counseling conversations as a pastor, so he had to retire. The July 2018 audiogram from the Atlanta VA Medical Center was labeled as inadequate for rating purposes, which the Board sees is due to the Maryland CNC speech discrimination test not being used at that time to evaluate the Veteran's hearing loss. Therefore, it cannot be considered in connection with the Veteran's claim for an increased rating for his bilateral hearing loss. The Board finds the preponderance of the evidence is against the Veteran's hearing loss disability warranting a disability rating in excess of 50 percent from May 13, 2017. On the May 2017 audiogram, the right ear had a puretone threshold average of 73.75 dB and speech discrimination of 56 percent which corresponds to a designation of VIII in Table VI, 38 C.F.R. § 4.85. Similarly, the left ear had a puretone average of 75 dB and speech discrimination of 56 percent, it receives a designation of VIII. See id. The intersection of designations VIII and VIII on Table VII establishes that the Veteran's hearing loss disability is entitled to a disability rating of 50 percent. See 38 C.F.R. § 4.85, DC 6100. With respect to the first prong of Thun, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's bilateral hearing loss is inadequate. For example, the Veteran testified that he left his job as a pastor because of an inability to understand speech during prayer requests or when responding to people. The inability to hear or understand speech is contemplated by the rating criteria for 38 C.F.R.§ 4.85. Doucette, 28 Vet. App. at 371-72. Accordingly, the first prong of Thun is not met; and therefore, an increased rating on an extraschedular basis is not warranted. For the reasons laid out above, the Board finds the preponderance of the evidence is against a rating in excess of 50 percent for a bilateral hearing loss disability from May 13, 2017. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not applicable, and the Veteran's claim for an increased rating for this part of the appeal period is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.