HEARING LOSS

Summary

The veteran, who served in the U.S. Marine Corps from December 1960 to December 1964, appeals the denial of an initial compensable extraschedular rating for bilateral hearing loss. The veteran is currently service-connected for tinnitus, rated at 10 percent, and bilateral hearing loss, rated noncompensable, for a combined 10 percent rating. The appeal specifically concerns entitlement to an extraschedular rating, which is reserved for exceptional or unusual disability pictures that render the application of regular schedular standards impractical. The Board reviewed the relevant regulations and case law, including Fisher v. Principi and Johnson v. McDonald, which address the criteria for extraschedular ratings and the consideration of combined disabilities. The Board noted that extraschedular ratings are not assigned in the first instance by the Board but can be reviewed on appeal. VA audiology examinations from December 2011 and March 2015 were considered. The March 2015 examination indicated the veteran experienced difficulty understanding conversations in background noise, may have trouble in noisy environments, and may have difficulty localizing sound due to asymmetry. The veteran contended that these examinations did not accurately reflect his hearing loss in daily life. However, the Board found that the decibel loss and speech discrimination ranges in the current rating criteria, revised in 1999, contemplate functional impairment and were developed with VHA assistance to fairly assess hearing disabilities in real-life settings. The Board concluded that the veteran's reported difficulties, such as understanding speech without visual cues and listening to the television at a higher volume, are already contemplated by the existing rating schedule. The Board also noted that the veteran did not raise a collective impact argument regarding the combined effects of his hearing loss and tinnitus. Therefore, the Board determined that the criteria for an extraschedular rating were not met, as the disability picture is not exceptional or unusual enough to warrant deviation from the schedular standards. The appeal for an extraschedular rating for bilateral hearing loss was denied.

Rationale

Existing schedular rating criteria contemplate functional impairment.; Veteran's reported difficulties are reflected in current rating schedule.; No exceptional or unusual disability picture presented.

Full Decision Text

Citation Nr: 1801385	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  12-20 021	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an initial compensable extraschedular rating for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. N. Shannon, Associate Counsel


INTRODUCTION

The Veteran had active service in the United States Marine Corps (USMC) from December 1960 to December 1964.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In May 2017, the Board remanded the appeal to the RO for additional development.  The matter has been returned to the Board for further appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).



FINDING OF FACT

The symptomatology of the Veteran's bilateral hearing loss, including difficulty understanding speech, requiring repetition of speech, and listening to the television at a higher volume are contemplated by the rating schedule.


CONCLUSION OF LAW

The criteria for entitlement to an initial compensable rating for bilateral hearing loss, on an extraschedular basis are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is currently service connected for tinnitus, rated as 10 percent disabling and bilateral hearing loss, rated noncompensable, for a combined rating of 10 percent.

A schedular rating itself is recognition that claimant's industrial capacity is impaired to some degree.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the injury. Id. at 363; 38 C.F.R. § 4.1.

The VA Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, 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).

The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal.  See Floyd v. Brown, 9 Vet. App. 88 (1996).  Here, in May 2017, the Board remanded this claim for extraschedular consideration and in June 2017, the Director rendered a decision that an extraschedular evaluation was not warranted.  See June 2017 Administrative Review decision.  However, the Board is not precluded from consideration of entitlement to a higher initial rating on an extraschedular basis.  Kuppamala v. McDonald, 27 Vet. App. 447 (2015).

Additionally, in Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of 38 C.F.R. § 3.321(b)(1) provides for referral of extraschedular consideration based on the collective impact of multiple disabilities."

There is little guidance on adjudicating entitlement to extraschedular ratings once the Director has provided the initial review.  In Kuppamala, the Court held that the standard for determining entitlement to an extraschedular rating was that such a rating would be commensurate with average earning capacity impairment due exclusively to the service connected disability or disabilities.

The December 2011 VA examiner noted the Veteran experienced difficulty understanding what was said during conversations in the absence of visual cues.  

The March 2015 examiner noted the
4), the Federal Circuit held that "[t]he plain language of 38 C.F.R. § 3.321(b)(1) provides for referral of extraschedular consideration based on the collective impact of multiple disabilities."

There is little guidance on adjudicating entitlement to extraschedular ratings once the Director has provided the initial review.  In Kuppamala, the Court held that the standard for determining entitlement to an extraschedular rating was that such a rating would be commensurate with average earning capacity impairment due exclusively to the service connected disability or disabilities.

The December 2011 VA examiner noted the Veteran experienced difficulty understanding what was said during conversations in the absence of visual cues.  

The March 2015 examiner noted the Veteran's contention that he had difficulty understanding speech and often had to ask the speaker to repeat words.  The Veteran also reported that his television "has to be up loud."  See March 2015 VA Audiology Examination at page 4.  The examiner remarked:

"Functionally, this Veteran's hearing loss may interfere with his ability to understand conversations in background noise and in situations where he is unable to see the speaker.  He may have trouble working well in noisy environments and in environments which require him to often use non face-to-face communications equipment (such as intercoms, phone, etc.), or in jobs which require a great deal of attention to high pitched sounds (such as monitoring medical equipment or other "beeps and pings").  Due to the asymmetry, he may have difficulty localizing sound."

In a July 2012 written statement, the Veteran stated that his right ear is worse than the findings in the December 2011 VA audiology examination reflect.  He contends the examination is not a true reading of his hearing loss.

In the March 2017 Appellate Brief, the Veteran, through his representative, specifically asserted that the VA audiological examinations do not provide an accurate picture of his hearing loss because they were conducted in a quiet and controlled environment; and does not reflect severity of his condition in the aspect of normal, daily life.

The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by Veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999).

In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these Veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA found through clinical studies of Veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of Veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). 

Recently the Court has held that the schedular criteria for rating hearing loss contemplate the functional impairment associated with that percentage of disability.  Doucette v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 319 (Mar. 6, 2017).

The VA examinations show that the Veteran does not have an exceptional pattern of hearing impairment.  Accordingly, the Board finds that functional impairment due to hearing loss is a disability picture that is considered in the current schedular rating criteria.  Therefore, the Veteran's struggle to comprehend verbal conversations without visual cues, asking for repetition of speech by the speaker and listening to his television at a higher volume are factors already contemplated in the regulations and rating criteria as defined.  Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology.

Finally, as noted, 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 disorders in an exceptional circumstance where the evaluation of the individual entities fails to
  Therefore, the Veteran's struggle to comprehend verbal conversations without visual cues, asking for repetition of speech by the speaker and listening to his television at a higher volume are factors already contemplated in the regulations and rating criteria as defined.  Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology.

Finally, as noted, 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 disorders in an exceptional circumstance where the evaluation of the individual entities fails to capture all the service connected disabilities experienced.  In this case the Veteran, nor his representative, has raised a collective impact argument in his appellate brief.  There is no indication the Veteran has asserted that the combined effects of his bilateral hearing loss and tinnitus, his only other service connected condition, requires extraschedular consideration.  See Rossy v. Shulkin, No. 16-0720 (Fed. Cir. December 13, 2017).  The Board need only address the issues either explicitly raised by a claimant or reasonably raised by the record.  Rossy, citing Yancy v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014)

There is nothing in the record to indicate that he has any symptom of his hearing loss that is not contemplated by the rating schedule or for that matter, or that his hearing loss has resulted in marked interference with employment or in frequent hospitalizations.  As such, referral for extraschedular consideration is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).


ORDER

Entitlement to an initial compensable rating for bilateral hearing loss on an extraschedular basis is denied.




____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs