Citation Nr: 18160626
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-22 214
DATE:	December 27, 2018
ORDER
Entitlement to service connection for tinnitus is granted.
Entitlement to an initial rating in excess of 10 percent for the period prior to March 3, 2015 for bilateral hearing loss disability is denied.
Entitlement to an initial rating in excess of 20 percent for the period since March 3, 2015 for bilateral hearing loss disability is denied.
FINDINGS OF FACT
1. Resolving reasonable doubt in the Veteran’s favor, tinnitus incurred in service.
2. For the period prior to March 3, 2015, the Veteran’s service-connected bilateral hearing loss has been manifested by no worse than level III hearing acuity in the right ear and level IV hearing acuity in the left ear. 
3. For the period since March 3, 2015, the Veteran’s service-connected bilateral hearing loss has been manifested by no worse than level V hearing acuity in the right ear and level V hearing acuity in the left ear. 
CONCLUSIONS OF LAW
1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017).
2.  The criteria for an initial rating in excess of 10 percent for the period prior to March 3, 2015 for a bilateral hearing loss disability have not been met.  38 U.S.C. §§ 1155, 5107(a) (2012); 38 C.F.R. §§ 4.85, Diagnostic Code 6100 (2017). 
3.  The criteria for an initial rating in excess of 20 percent for the period since March 3, 2015 for a bilateral hearing loss disability have not been met.  38 U.S.C. §§ 1155, 5107(a) (2012); 38 C.F.R. §§ 4.85, Diagnostic Code 6100 (2017). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1975 to January 1979.  This case is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). 
During the pendency of the appeal, the RO issued a rating decision which granted an increased rating to 20 percent for the service-connected bilateral hearing loss, effective from March 3, 2015.  As the award is not a complete grant of benefits, the issue, as characterized on the cover page, remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993). 
In May 2017 the Board remanded these issues for additional development.
In his substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge.  While the Veteran was scheduled for hearings in January 2017 and August 2018, these hearing requests were eventually cancelled.  Thus, the hearing requests are considered withdrawn.
1. Tinnitus
Laws and Regulations
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).
To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.”  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.”  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).
Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury.  Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability.  Id.  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). 
In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).
Factual Background and Analysis
The Veteran’s service treatment records are negative for complaints or treatments related to tinnitus.
The Veteran underwent a VA examination in July 2013.  The Veteran reported having tinnitus that was constant.  The examiner opined that it was less likely than not that the Veteran’s tinnitus was related to the Veteran’s military noise exposure or his impaired hearing as there were no documented concerns for tinnitus during his military service and he denied tinnitus on 2011 and 2012 evaluations.  
The Veteran underwent a VA examination in March 2015.  The Veteran reported having tinnitus since 1985.  The examiner opined that it was less likely than not that the Veteran’s tinnitus was related to the Veteran’s military noise exposure as the Veteran denied having tinnitus in 2011 and 2012.
After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for tinnitus is warranted.
The evidence demonstrates that military noise exposure is conceded as he had military noise exposure to gunfire as he was Marksmanship Instructor.  Thus, his assertions of in-service noise exposure appear to be credible, and consistent with the circumstances of service.  The Veteran is also competent to report in-service exposure to noise.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002).  For all of these reasons, such exposure is presumed.  38 U.S.C. § 1154(a) (b) (2012).
The Board acknowledges that the July 2013 and March 2015 VA examiners opined that it was less likely as not that the Veteran’s tinnitus was incurred in service.  The examiners based these opinions on the reported onset of the tinnitus many years after his military noise exposure.  
However, the Board also notes that in a July 2012 rating decision, the RO granted entitlement to service connection for bilateral hearing loss disability, based on the Veteran’s in-service noise exposure.  
Additionally, in the Veteran’s December 2018 Appellant’s Brief, the Veteran’s representative submitted a medical article which noted that “most often, tinnitus is caused by repeated exposure to excessive noise[.]”
As tinnitus is a uniquely subjective disorder and the Veteran has been service-connected for bilateral hearing loss related to noise exposure in service, the Board will resolve reasonable doubt in the Veteran’s favor and finds that the Veteran’s tinnitus is related to his service and the criteria for a grant of service connection for tinnitus have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.
In sum, for the reasons and bases discussed above, all doubt is resolved in favor of the Veteran, and service connection for tinnitus is warranted.  See 38 U.S.C.          § 5107(b).
2. Bilateral hearing loss
Laws and Regulations
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
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.  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.  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3. 
The Veteran’s entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1.  Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  See also Hart v. Mansfield, 21 Vet. App. 505 (2008).
In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  He is also competent to report symptoms of his hearing loss.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  The Veteran is competent to describe his symptoms and their effects on employment or daily activities.  His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal.
A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).
Under the rating criteria, the basic method of rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four.
Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average.  Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear.  38 C.F.R. § 4.85. 
There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss.  In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral.  Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  The higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.
Factual Background and Analysis
1. Period Prior to March 3, 2015
After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against entitlement to an initial rating in excess of 10 percent for bilateral hearing loss disability for the period prior to March 3, 2015.  
As a preliminary matter, for the period prior to March 3, 2015, the Board observes that the pure tone thresholds recorded on all of the audiological evaluations detailed below do not reflect exceptional hearing impairment as defined by regulation, as the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is not 55 decibels or more, and the pure tone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  Thus, Table VIa is not for application.  38 C.F.R. § 4.86.  Consequently, the Board will evaluate the Veteran’s hearing using Table VI.
The only VA audiology examination prior to March 2015 was conducted in June 2012.  On air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows:



			HERTZ		
	1000	2000	3000	4000	Average
RIGHT	45	65	65	65	60
LEFT	45	50	65	70	58

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 80 percent in the left ear.
The examiner noted that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including his ability to work as the Veteran reported that he always had to ask people to repeat what they have said as he “just cannot understand the words that are being said”.
Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 60 decibels combined with the right ear speech discrimination of 84 percent results in a Roman numeral designation of III, while the left ear pure tone threshold average of 58 decibels when combined with the left ear speech recognition of 80 percent results in a Roman numeral designation of IV.  Application of these findings to Table VII corresponds to a 10 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.
As the June 2012 testing results do not yield findings to support assignment of an initial rating in excess of 10 percent for bilateral hearing loss, the Veteran is not entitled to a higher rating prior to March 3, 2015.  38 C.F.R. §§ 4.7, 4.21.  
Notably, aside from the June 2012 VA examination reports, there are no other audiometric test results which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes for the period prior to March 2015.  

2. Period since March 3, 2015
The following evidence indicates that an initial rating higher than 20 percent has not been warranted since March 3, 2015.  
The Veteran underwent a VA examination in March 2015.  On air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows:

			HERTZ		
	1000	2000	3000	4000	Average
RIGHT	50	70	65	65	63
LEFT	55	65	70	65	64

Speech audiometry revealed speech recognition ability of 74 percent in the right ear and of 86 percent in the left ear.
The examiner noted that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including his ability to work as the Veteran reported having difficulty hearing conversations.
Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 63 decibels combined with the right ear speech discrimination of 74 percent results in a Roman numeral designation of V
Because the Veteran’s pure tone thresholds are 55 decibels or more at each of the four specified frequencies for the left ear, the provisions of 38 C.F.R. § 4.86(b) are for application.  The exceptional hearing loss provisions using Table VIa results in higher Roman numerals than Table VI for left ear hearing loss.  However, the application of that section does not provide a basis for awarding an evaluation in excess of 20 percent.  Under Table VIa, the left ear pure tone threshold average of 64 warrants a Roman numeral designation of V.  The V, for the right ear, when combined with the left ear designation of V, results in a 20 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.
As the March 2015 testing results noted above do not yield findings to support assignment of an initial rating in excess of 20 percent for bilateral hearing loss, the Veteran is not entitled to a higher rating since March 3, 2015.  38 C.F.R. §§ 4.7, 4.21.  
Notably, except for the June 2012 and March 2015 VA reports, there are no other audiometric test results which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes for either period under appeal.  
3. Both periods on appeal
The Board has carefully considered the Veteran’s assertions and other lay statements of record and in no way discounts the Veteran’s asserted difficulties or his assertions that his bilateral hearing loss should be rated higher.  However, as noted above, the June 2012 and March 2015 VA examinations were conducted in accordance with the requirements for a hearing impairment examination for VA purposes.  See 38 C.F.R. § 4.85(a).
The lay statements are both competent and credible in regard to reporting worsening hearing acuity and functional effects.  However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss.  In essence, lay statements are of limited probative value.  As a layperson, the Veteran is competent to report difficulties with his hearing; however, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems.
Although the Veteran has indicated that his hearing is worse than the criteria associated with the assigned ratings, the rating criteria for hearing loss, as addressed above, requires the mechanical application of rating criteria to objectively-obtained audiometric testing results.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The current evaluations are reflected by the rating evidence of record and there is no indication that the findings on the June 2012 and March 2015 VA audiological examinations are inadequate.  Thus, the Veteran’s claims for an initial rating in excess of 10 percent for the period prior to March 3, 2015 and an initial rating in excess of 20 percent for the period since March 3, 2015 for his bilateral hearing loss disability cannot be granted.
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).  An exceptional case includes such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation 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.
With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected bilateral hearing loss were inadequate.  A comparison between the level of severity and symptomatology of the Veteran’s bilateral hearing loss with the established criteria shows that the rating criteria reasonably described his disability level and symptomatology with respect to the symptoms he experienced. 
During his June 2012 and March 2015 VA audiological examinations, the examiners noted that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including his ability to work as the Veteran reported having difficulty hearing conversations.
In this case, the Board finds that the schedular rating currently assigned for hearing loss reasonably describes the Veteran’s disability level and symptomatology.     See 38 C.F.R. § 4.85, Diagnostic Code 6100.  The Veteran reports that his hearing loss impacts the ordinary conditions of his daily life as he had difficulty hearing.  The Court has held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are precisely the effects that VA’s audiometric tests are designed to measure.  The situations noted by the Veteran in this case amount to decreased hearing and are not exceptional or unusual for someone with hearing loss.  Other functional effects that may be associated with hearing disability, such as such as dizziness, vertigo, ear pain, recurrent loss of balance, social isolation, etc., are not discussed or accounted for in the rating criteria.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).  Nevertheless, no such effects are present in this case.  
The Veteran’s description of difficulty hearing has been measured according to pure tone averages and speech discrimination.  As explained above, the rating criteria are designed to take into account testing that accurately measures difficulty hearing in an objective way and the Veteran’s reports of difficulty hearing simply do not represent an exceptional or unusual case.  As such, the first Thun element cannot be met.  
Accordingly, the Board has concluded that referral of the Veteran’s bilateral hearing loss impairment for extraschedular consideration is not in order.
Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  In this case, the Veteran has multiple service connected disabilities, but there is no argument or indication that the combination of these disabilities is so exceptional as to warrant extraschedular consideration.  As such, further discussion of an extraschedular rating based upon the combined effect of multiple conditions is not necessary.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016) (“the Board is required to address whether referral for extraschedular consideration is warranted for a veteran’s disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities”).
In short, the rating criteria reasonably describe the Veteran’s disability level and symptomatology.  As such, referral of this case for extraschedular consideration is not warranted.
 
CHRISTOPHER MCENTEE
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	James A. DeFrank, Counsel

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