Citation Nr: 21031777 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-17 905 DATE: May 24, 2021 ORDER Entitlement to a compensable evaluation for bilateral hearing loss, to include on an extraschedular basis, is denied. FINDING OF FACT The symptoms of the Veteran's bilateral hearing loss are contemplated by the rating schedule; throughout the appeal, the Veteran had no worse than Level VI auditory acuity in the right ear and Level I in the left. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss, to include on an extraschedular basis, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.85, Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1954 to February 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a July 2014 hearing before a Veterans Law Judge (VLJ) who has since retired from the Board. In March 2021, the Veteran was notified that the VLJ who conducted his hearing is no longer at the Board, and he was asked to respond within 30 days indicating whether he would like a new hearing. VA has received no response. As such, there is no hearing request pending. In April 2016, the Board denied entitlement to a compensable rating for bilateral hearing loss. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In July 2017, the Court vacated the Board's denial and remanded the matter to the Board for compliance with the instructions included in the Memorandum Decision. In December 2017, the Board remanded the appeal for development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 1. Entitlement to a compensable evaluation for bilateral hearing loss, to include on an extraschedular basis, is denied. The Veteran contends that he is entitled to a compensable rating for his bilateral hearing loss. The appeal period before the Board begins on September 14, 2010, one year prior to receipt of the claim for increase. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). 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 Maryland CNC speech discrimination test 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). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 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 and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone 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 that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). An April 2012 VA examination reveals that the Veteran reported difficulty understanding soft spoken speech and speech in the presence of background noise. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: April 20, 2012 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 45 55 60 47.5 90 LEFT 20 20 35 60 33.75 96 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A May 2012 VA examination reveals that the Veteran reported he "can't hear well." He stated that it is difficult to understand the TV even with his hearing aid. He reported that he is retired, and that his hearing loss does not impact his daily activities. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: May 14, 2012 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 45 60 65 51 92 LEFT 10 10 35 60 29 94 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for both ears to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A September 2015 private evaluation reveals that the Veteran reported he asks for repeats often, misses conversations, has difficulty hearing in the presence of background noise, and has difficulty hearing the TV. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: September 29, 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 45 65 65 52.5 60 LEFT 10 15 45 60 32.5 100 Applying the results to Table VI, the findings yield a numeric designation of Level VI in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board notes that the claims file includes records of VA treatment of the Veteran. These records document that Veteran continued to be followed for hearing loss, and that he had been issued hearing aids. However, such records do not include audiometric findings that may be considered in evaluating the Veteran's bilateral hearing loss. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including reports of difficulty understanding soft spoken speech and speech in the presence of background noise, difficulty hearing the TV, and missing conversations. The Veteran is competent to report difficulty with his hearing; however, 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). The Board next turns to whether an award of an extraschedular rating is warranted. As noted in the Introduction, in the June 2017 Memorandum Decision, the Court instructed the Board to consider the collective impact of the Veteran's service-connected disabilities in accordance with Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The Court noted that the Veteran's service-connected bilateral hearing loss and tinnitus "appear to be working against each other" because the Veteran expressed difficulty hearing soft noises and that loud noises negatively impact his tinnitus. In December 2017, the Board remanded the appeal, so the RO could refer the matter to the Director of the Compensation Service for extraschedular consideration addressing the combined effect of the Veteran's service-connected bilateral hearing loss and tinnitus disabilities. The determination of whether a veteran is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111 Vet. App. (2008). If the Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. 38 C.F.R. § 3.321(b)(1). When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. It must remand the claim to the RO for referral to the Director of Compensation Service for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. 111. The Board initially notes that any contentions pertaining to the collective impact of the Veteran's service-connected disabilities for extraschedular consideration is moot. On December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321(b)(1) to clarify that an extraschedular rating is not available based on the combined effects of multiple service-connected disabilities. See 82 Fed. Reg. 57830. The rule is effective January 8, 2018 to all claims received or pending as of that date. Id.; 38 C.F.R. § 3.321(b). As this claim was pending before the Board on January 8, 2018, such analysis under Johnson is now moot. In November 2020, the Director of Compensation Service declined to award an extraschedular evaluation for the hearing loss as no unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical. The Director's decision is not evidence, but a de facto RO decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). The Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating, and may assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The threshold question for the Board is whether the rating criteria adequately contemplate the Veteran's disability. In the present case, as discussed above, the Veteran reports difficulty understanding soft spoken speech, speech in the presence of background noise, difficulty hearing the TV, and missing conversations. 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 an audiometric testing results to a rating table. This is what was done in this case. The audiological findings of the April 2012, May 2012, and September 2015 evaluations are adequate and probative, and upon a mechanical application to the rating table, resulted in a noncompensable evaluation. See 38 C.F.R. § 4.85(a). The Court in Doucette v. Shulkin, 38 Vet. App. 366 (2017) held that the schedular rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure. Subsequently, the Court also held that the complaint of difficulty understanding conversations in various contexts was "squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria." Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Most recently, the Court in Long v. Wilkie, 33 Vet. App. 167 (2020), reiterated that the rating criteria for hearing loss contemplates symptoms related to decreased hearing. Id. at 7-8. Given the above, the Veteran's bilateral hearing loss symptomatology is adequately contemplated by the schedular rating criteria. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. Nonetheless, the Board points out also there is no evidence here that the Veteran's hearing loss symptomatology results in exceptional factors such as marked interference with employment or frequent periods of hospitalization. The Veteran is currently retired and he has not reported, nor does the record reflect, frequent periods of hospitalization due to his hearing loss symptomatology. Thus, an exceptional disability picture is not shown and an extraschedular rating is not warranted. In conclusion, the preponderance of the evidence is against the assignment of a compensable rating for bilateral hearing loss, to include on an extraschedular basis. There is no reasonable doubt to be resolved in the Veteran's favor, and the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.