Citation Nr: 18160440
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 14-24 403
DATE:	December 26, 2018
ORDER
Entitlement to an initial compensable rating for left ear hearing loss is denied.  
FINDING OF FACT
The Veteran’s has no greater than Level I hearing acuity for the left ear.  
CONCLUSION OF LAW
1. The criteria for an initial compensable disability rating for left ear hearing loss have not all been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.201, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, Diagnostic Code (DC) 6100, 4.86 (2017).    
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from December 2004 to October 2012.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).
In October 2016, the Veteran presented testimony at a travel Board hearing before the undersigned Veteran’s Law Judge.  A transcript of the hearing is of record.  
This case was previously before the Board.  The January 2018 Board decision denied entitlement to an initial compensable rating for left ear hearing loss.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claim (Court).  In August 2018, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) on the grounds that the Board erred when it concluded that VA satisfied its duty to assist by providing an adequate medical examination.  
Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  
In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  
In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.”  See Fenderson v. West, 12 Vet. App. 119 (1999).
Left Ear Hearing Loss
The Veteran contends that his left ear hearing loss should be evaluated at a compensable level.  
Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz (Hz).  38 C.F.R. § 4.85, DC 6100.  An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC).  Id.  To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI.  Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters.  Id.  Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear.  Id.
Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran.  38 C.F.R. § 4.86.  This applies to two patterns.  In both patterns each ear will be evaluated separately.  Id.  The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more.  38 C.F.R. § 4.86(a).  The second pattern is where the pure tone threshold is 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz.  Id.  If the second pattern exists, the Roman numeral will be elevated to the next higher numeral.  Id.  
As the evidence described below shows, neither of the patterns are present in this case.  In describing the evidence, the Board refers to the frequencies of 1000, 2000, 3000, and 4000 Hz, as the frequencies of interest.  
In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for his left ear hearing loss under 38 C.F.R. §§ 4.85 or 4.86, DC 6100.
The November 2012 VA audiological examination revealed puretone thresholds in the Veteran’s left ear of 10, 5, 10, and 55 decibels, at 1000, 2000, 3000 and 4000 Hz.  The Maryland CNC speech recognition score was 96 percent in the left ear.  Using Table VI, the Veteran’s November 2012 VA examination results revealed Level I hearing acuity in the left ear.  Using Table VII, Roman numeral I is used for the non-service-connected right ear.  Combining these levels according to Table VII results in a noncompensable rating.  The resulting examination report indicates the Veteran’s claims file was not available for review.
The April 2015 VA audiological examination report indicates the examiner reviewed the Veteran’s claims file, noting the Veteran’s reported history of noise exposure in service related to combat, instructing weapons training and expose to RPG training; to include his participation in a hearing conservation program.  The resulting examination revealed puretone thresholds in the Veteran’s left ear of 10, 5, 15, and 45 decibels, at 1000, 2000, 3000 and 4000 Hz.  The Maryland CNC speech recognition score was 88 percent in the left ear.  Using Table VI, the Veteran’s April 2015 VA examination results revealed Level II hearing acuity in the left ear.  Using Table VII, Roman numeral I is used for the non-service-connected right ear.  Combining these levels according to Table VII results in a noncompensable rating.  The examiner concluded that hearing loss impacted ordinary conditions of daily life, including the ability to work described the Veteran’s reported difficulty of hearing people talk and the inability to determine a male versus a female voice over the phone. 
Pursuant to the JMR, the Parties agreed that it was not clear that the April 2015 VA examiner used the VA-approved recording of the Maryland CNC test.  As such, the Parties agreed that a clarifying opinion should be obtained or VA should provide the Veteran with a new audiology examination using the VA-approved recording of the Maryland CNC test.  
The Veteran attended a VA examination in June 2018.  The audiological examination revealed puretone thresholds in the Veteran’s left ear of 25, 25, 30, and 55 decibels, at 1000, 2000, 3000 and 4000 Hz.  The average puretone threshold was 34 in the left ear.  The Maryland CNC speech recognition score was 94 percent in the left ear.  Therefore, the examination results revealed Level I hearing acuity in the left ear.  Using Table VII, Roman numeral I is used for the non-service-connected right ear.  Combining these levels according to Table VII results in a noncompensable rating.  The Veteran stated that he is a teacher and cannot hear his students at times.  He also stated he has problems hearing conversation on the telephone and has to use his right ear.  
The Board finds the June 2018 examination the most probative evidence of record.  The examination is the most recent, and there is no indication or contention that the examination did not use the approved recording of the Maryland CNC test.  As noted above, the 2012 examiner did not review the claims file, and it is unclear if the 2015 examiner used the approved recording of the Maryland CNC test.  As such, these examinations are less probative.
The Board has considered the Veteran’s contentions that he has difficulty hearing and understanding voices and speech, including over the telephone.  However, the schedular criteria for hearing loss contemplates the functional effects of difficulty hearing and understanding speech.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).
The Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase.  See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009).  In this case The Board acknowledges the Veteran’s reports that it is difficult to hear his students speak.  However, neither the Veteran nor the record has raised the question of unemployability due to service-connected disability. Therefore, no further discussion of a TDIU is necessary. 
The Board concludes that a compensable rating for the Veteran’s left ear hearing loss is not warranted.  It is apparent that the assigned noncompensable disability evaluation for the appeal period for the Veteran’s left ear hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86.  Although the Veteran contends that his left ear hearing loss is more severe, and therefore warrants a higher evaluation, the assignment of disability evaluations for hearing impairment is a mechanical application of the rating criteria from which the Board cannot deviate.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).
Accordingly, the preponderance of the evidence is against an initial compensable rating for left ear hearing loss disability.  There is no reasonable doubt to be resolved as to this issue.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 
Extraschedular Consideration 
The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case.  In determining whether a referral for extraschedular evaluation is warranted, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran’s service-connected disability.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  The Board finds that the Veteran’s symptoms do not constitute an exceptional or unusual disability picture. 
In the October 2018 VA Form 9, the Veteran stated that he now has balance problems.  The Board finds that this symptom is not contemplated in the rating schedule for hearing loss, but it is specifically indicated by the rating schedule to be a symptom of separately ratable disabilities.  This symptom is recognized in the rating schedule as a symptom of peripheral vestibular disorders (DC 6204) or Meniere’s syndrome (DC 6205), which are separately compensable disabilities distinct from hearing impairment (DC 6100), and would be rated in accordance to the schedular criteria under the applicable Diagnostic Code, provided it is service connected.
Turning to the question of whether the above stated symptom is related to the service connected left ear hearing loss, the Veteran is competent to report his symptoms, but the is not competent to determine the specific etiology of his symptoms.  There is no competent evidence in the record to suggest that balance problems are related to service connected left ear hearing loss, and the Board is precluded from finding such a relationship exists absent any competent and probative evidence.  
In order for the Veteran to obtain a rating for balance problems, either together with or separate from hearing loss, as a peripheral vestibular disorder (DC 6204) or to obtain a rating for Meniere’s syndrome (DC 6205) in lieu of hearing loss, service connection must first be established for this symptom or the disability that accounts for these symptoms.  For these reasons, the Board finds that the record does not establish that Veteran’s left ear hearing loss is so exceptional or unusual as to warrant referral for extraschedular consideration.
							(CONTINUED ON NEXT PAGE)
 
In conclusion, the schedular criteria are adequate to rate the Veteran’s service-connected left ear hearing loss.  The preponderance of the evidence is against assigning a higher rating on an extraschedular basis.  There is no reasonable doubt to be resolved as to this issue.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

 
JAMES G. REINHART
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Norah Patrick, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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