Citation Nr: 1401030 Decision Date: 01/09/14 Archive Date: 01/23/14 DOCKET NO. 07-34 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to higher initial ratings for myoclonus of both hands and right foot, rated zero percent prior to November 15, 2011, and 10 percent thereafter. 2. Entitlement to a compensable initial rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active air service from September 1976 to September 1984, from April 1997 to February 1998, and from January 2003 to September 2005. He also performed active duty for training and inactive duty training with Reserve components at various times. This matter arises to the Board of Veterans' Appeals (Board) from an October 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Buffalo, New York, that, in pertinent part, granted service connection and initial noncompensable ratings for bilateral hearing loss and myoclonus of the hands and right foot. The decision denied service connection for tinnitus and for myoclonic spasm of the diaphragm. In September 2011, the Board granted service connection for tinnitus and remanded the remaining three issues for development. In September 2012, the Appeals Management Center granted service connection for myoclonic diaphragm spasm and assigned a noncompensable rating. The Veteran has not appealed the initial rating or the effective date for service connection for tinnitus or for myoclonic diaphragm spasm. That decision also assigned a 10 percent rating, effective November 15, 2011, for myoclonus of both hands and the right foot. The Veteran has continued his appeal for a compensable initial schedular rating for a bilateral hearing loss disability and for higher initial schedular ratings for myoclonus of both hands and right foot. The record before the Board consists of paper claims files and electronic files. FINDINGS OF FACT 1. Full hand, arm, and leg muscle strength has been shown throughout both appeal periods. 2. Prior to November 15, 2011, myoclonus was manifested by occasional jerks of both hands and the right leg, bilateral hand tremors, grogginess, and a need for medication. 3. Service-connected myoclonus improved during the appeal period, as shown by a November 15, 2011, VA compensation examination report. 4. Commencing on November 15, 2011, myoclonus has been manifested by occasional jerks of the right hand and the right leg; no longer shown are left hand jerks, any hand tremors, grogginess, or a need for continuous medication. 5. Throughout the appeal period, the Veteran's bilateral hearing loss has been manifested by no worse than level I hearing impairment in each ear. CONCLUSIONS OF LAW 1. For the period prior to November 15, 2011, the criteria for a 10 percent schedular rating for myoclonus of the right hand are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8517 (2013). 2. For the period prior to November 15, 2011, the criteria for a 10 percent schedular rating for myoclonus of the left hand are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8517 (2013). 3. For the entire appeal period, the criteria for a 10 percent schedular rating for myoclonus of the right foot are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8720 (2013). 4. For the period commencing on November 15, 2011, the criteria for an initial schedular rating greater than 10 percent myoclonus of the right hand are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8517 (2013). 5. The criteria for a compensable schedular rating for a bilateral hearing loss disability are not met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist, and Due Process The Board remanded the case for development in September 2011. The United States Court of Appeals for Veterans Claims (Court) has held that when the remand orders of the Board are not complied with the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has complied with all remand orders of the Board; thus, another remand is not necessary. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and VA must assist the claimant by making reasonable efforts to obtain all evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A VA notice letter must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and the notice letter must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA's notice requirements that are set forth at 38 U.S.C.A. § 5103(a) and at 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, VA must notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA's duty to notify the claimant was satisfied by a letter sent to the claimant in April 2007 with regard to the claims. An earlier notice letter, sent in January 2006, does not meet VA's notice requirements. Although the April 2007 notice letter addresses all of the notice elements, it was not sent prior to the initial unfavorable decision by the RO in October 2006. This created a timing error. The Court held, in Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006), that VA cured such a timing error by issuing a satisfactory notification letter and then re-adjudicating the claim. In this case, the RO issued a statement of the case (SOC) that re-adjudicated the case in September 2007. This SOC cured the timing error. VA's duty to assist the Veteran in the development of the claims has also been met. The service treatment records (STRs) and all pertinent VA and private treatment records have been obtained and associated with the file. VA examinations and opinions addressing the appealed issues have been obtained. See 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The medical opinions obtained in this case are adequate, as they are based on the private and VA medical records in the claims files. The medical experts considered the pertinent evidence of record and the statements of the claimant, and provided a rationale for the opinions stated, relying on the records reviewed. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Disability Ratings Generally Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2013). In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. The Court has also held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Both claims on appeal arise from disagreement with the initially assigned ratings and a staged rating was created for the myoclonus claim. Myoclonus of the Hands and Right Foot Myoclonus of both hands plus the right foot is rated zero percent prior to November 15, 2011, and 10 percent thereafter under Diagnostic Code 5309-8103. Myoclonus is defined as shock-like contractions of a portion of a muscle, an entire muscle, or a group of muscles, restricted to one area of the body or appearing synchronously or asynchronously in several areas. Dorland's Illustrated Medical Dictionary 1092 (28th ed. 1994). Diagnostic Code 5309 provides rating criteria for injuries to Muscle Group IX. Muscle Group IX includes forearm muscles. These forearm muscles act in strong grasping movements and are supplemented by the intrinsic muscles of the hand in delicate manipulative movements. Diagnostic Code 5309 also rates the intrinsic muscles of hand. 38 C.F.R. § 4.73, Diagnostic Code 5309 (2013). A rating note following Diagnostic Code 5309 states that the hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, tendons, etc. Rate on limitation of motion, minimum 10 percent. Diagnostic Code 5309 provides no specific ratings for muscle injury. Rather, an injury to this muscle group is rated on any limitation of motion found, but at least a minimum rating of 10 percent is to be granted in all cases. Convulsive tic is rated under Diagnostic Code 8103. Tic is defined as an involuntary, compulsive, repetitive, stereotyped movement, usually of the face or shoulders, resembling a purposeful movement because it is coordinated and involves muscles in their normal synergistic relationships. It may be psychogenic or neurogenic in origin. Dorland's at 1711. Under Diagnostic Code 8103, mild convulsive tic warrants a noncompensable rating. Moderate convulsive tic warrants a 10 percent rating and severe convulsive tic warrants a 30 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8103 (2013). The RO granted service connection for myoclonus of the hands and right foot based on STRs that show complaints of and treatment for myoclonus in June 2005, during active service. A June 2005 STR notes a several-week history of jerks of both hands three or four times per day. Treatment with Depakote was started. A July 2006 VA clinical report describes the myoclonus as normal sleep-onset hypnic jerks, but also isolated, very-brief jerks that came unpredictably and without warning. They were not stereotyped. They were multi-focal and occurred in almost any location and shifted location from occurrence to occurrence. The Veteran took Depakote for these jerks. The jerks occurred 10 to 15 times per day, but the Depakote had decreased the amplitude of the jerks. The neurologist reported that Depakote had also caused tremors and grogginess. An electroencephalogram (EEG) and a change in medication were planned. A July 2006 VA general medical compensation examination report describes the jerks as "occasional uncontrolled momentary fine motor spasms of the hands and feet" and states that they do not interfere with the activities of daily living. The report offers a diagnosis of myoclonus of the bilateral hands and right foot. While the examiner, a nurse-practitioner, described myoclonus of both feet, the examiner, did not explain why the diagnosis excluded the left foot. Because service connection for myoclonus of the left lower extremity has not been established, the Board will not further address left lower extremity symptomatology. A December 2006 VA neurology clinic treatment note mentions that an August 2006 EEG ruled-out epilepsy and also mentions that myoclonus was deemed to be idiopathic. Since changing from Depakote to Keppra, the frequency of the jerks decreased to a few times per week. Hand tremors also decreased but were still present in both hands, left hand worse than the right. The Veteran reported no side effect from Keppra. The VA treating physician observed minimal hand tremors, worse on the left. An increase in dosage of Keppra was considered. The Veteran was to return for follow-up treatment in 6 months. A June 2007 VA neurology clinic treatment note mentions that hand tremors remained and were worse on the left. Muscle strength was normal. A July 2007 EEG continued to rule-out epilepsy. As noted in the introduction, the Board remanded the case for an examination in September 2011. A November 2011 VA neurology compensation examination was conducted pursuant to the remand. The report reflects that the jerks had improved to the point that they no longer manifested on the left side. The right leg and right hand jerks continued, however. The report notes that Keppra had been discontinued in 2008 because it caused anxiety. The right-sided jerks continued but remained stable, that is, no better, no worse. They occurred one or two times per day, for seconds at a time, in both the right upper and right lower extremity. The Veteran reportedly had not had a left-sided jerk since 2008. The examiner found no motor or sensory disturbance. The examiner found that the condition did not affect the Veteran's ability to work as a clergyman. The facts above reflect that the service-connected myoclonus has improved during the appeal period. The November 15, 2011, VA compensation examination report reflects that there is no more left upper extremity myoclonus. The disability was clearly describes as right-sided only. Also no longer shown is the bilateral hand tremors that had been reported earlier. While the AMC chose November 15, 2011, as the date that an increase in disability was shown, the November 15, 2011 compensation examination report compels a conclusion that an improvement is clearly shown on that date. The facts reflect that prior to November 15, 2011, the service-connected myoclonus was manifested by occasional jerks of both hands and the right leg, bilateral hand tremors, grogginess, and a need for medication. The mild hand tremors and grogginess should be included as service-connected manifestations during this time period, as they were attributed to Depakote by a physician in July 2006. A VA rating instruction addresses tremors. Appearing at 38 C.F.R. § 4.124a is the following guidance: [With the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the motor, sensory, or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and etc., referring to the appropriate bodily system of the schedule. With partial loss of one or more extremities from neurological lesions, rate by comparison with mild moderate, severe, or complete paralysis of peripheral nerves] Comparing the myoclonus manifestations during the earlier appeal period to the rating criteria of Diagnostic Code 5309, it must be noted that no muscle disability of an upper extremity or the right lower extremity is shown. Hand, arm, and leg strengths have been full throughout both appeal periods. Thus, Diagnostic Code 5309 will not be considered further. Comparing the myoclonus manifestations to the rating criteria of Diagnostic Code 8103 raises the question of whether it should be rated as mild, moderate, or severe. The rating schedule offers no guidance with which to distinguish one level of disability from another. Because Dorland's informs that a tic may be psychogenic or neurogenic, and because the medical evidence has not distinguished the Veteran's myoclonus as one or the other, and because myoclonus is a condition not listed in the rating schedule, the Board should consider other diagnostic codes for nervous and psychological disabilities. See 38 C.F.R. § 4.20 (2013) (pertaining to analogous ratings). Diagnostic Codes 8517 and 8617 are used when rating neuralgia of the hands, depending on whether the median or the ulnar nerve is disabled. Myoclonus might be thought of as analogous to neuralgia of the hands. The Board chooses to use Diagnostic Code 8517, rather than Diagnostic Code 8617, in rating the Veteran's myoclonus, but the resulting rating would be the same with either diagnostic code. Simultaneously rating myoclonus under more than one code is prohibited, however, as that would violate the rule against pyramiding. See 38 C.F.R. § 4.14 (2013); Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (permitting separate evaluations for separate problems arising from the same injury if they do not constitute the same disability or same manifestation under 38 C.F.R. § 4.14). Under Diagnostic Code 8517 or 8617, a 10 percent rating is warranted when incomplete paralysis of the nerve is mild. Because upper extremity myoclonus, even considering bilateral hand tremors, appears to be no worse than mild in either upper extremity for the earlier appeal period, the criteria of a 10 percent schedular rating, and no higher, for the right upper extremity, and a separate 10 percent schedular rating, and no higher, under Diagnostic Code 8517 for the left upper extremity, are more nearly approximated. Turning to a schedular rating for the right lower extremity for the earlier portion of the appeal period, Diagnostic Code 8720 and other codes offer a 10 percent rating for mild neuralgia, which is analogous to myoclonus of the right foot. Because the right lower extremity myoclonus manifestations appears to be no worse than mild, the criteria of a 10 percent schedular rating are more nearly approximated under Diagnostic Code 8720 for the earlier appeal period. Turning to a possible psychogenic basis for myoclonus, Diagnostic Code 9421 and other psychiatric-related codes offer a 10 percent rating where symptoms are controlled by continuous medication, as is shown in this case. See 38 C.F.R. § 4.130, Diagnostic Codes 9421 through 9435 (2013). Under these diagnostic codes, the criteria for a psychiatric rating greater than 10 percent are not more nearly approximated because neither occupational nor social impairment due to myoclonus is shown. 38 C.F.R. § 4.126(d) contains additional rating guidance for choosing a psychiatric diagnostic code. That subsection states: When a single disability has been diagnosed both as a physical condition and as a mental disorder, the rating agency shall evaluate it using a diagnostic code which represents the dominant (more disabling) aspect of the condition (see § 4.14). Because the dominant aspect of the service-connected myoclonus appears to be neurogenic, rather than psychogenic, rating this disability as a mental disorder need not be considered further. Of the various rating methods discussed above, the method that appears to be of greatest benefit to the Veteran is the method that offers three separate 10 percent ratings for neuralgia of each of the three extremities involved. Therefore, after considering all the evidence of record, for the period prior to November 15, 2011, the Board will grant a 10 percent rating under Diagnostic Code 8517 for right upper extremity myoclonus, a separate 10 percent rating under Diagnostic Code 8517 for left upper extremity myoclonus, and a separate 10 percent rating under Diagnostic Code 8720 for right lower extremity myoclonus. Turning to the rating period commencing on November 15, 2011, the service-connected myoclonus has been manifested by occasional jerks of the right hand and the right leg. According to the November 15, 2011, compensation examination report, no longer shown are left hand jerks, any hand tremors, grogginess, or a need for medication. The AMC has already assigned a single 10 percent schedular rating for myoclonus for this latter rating period under Diagnostic Code 5309-8103. The Board will leave this 10 percent rating for the right upper extremity undisturbed, but recommends that the diagnostic code for that rating be changed to 8517. The Board must deny a schedular rating greater than 10 percent for the right upper extremity for the latter appeal period. However, the Board will, for the latter appeal period, grant a separate 10 percent rating under Diagnostic Code 8720 for right foot myoclonus. The Board notes that, because of the Veteran's dynamic symptoms, some rating stages are less than a previous stage. Because the Veteran's disability rating was never reduced below the level that was appealed, the reduction procedures of 38 C.F.R. § 3.105(e) and the "stabilization" provisions of 38 C.F.R. § 3.344 are not for application. See Singleton v. Shinseki, 659 F.3d 1332, 1334-36 (Fed. Cir. 2011); O'Connell v. Nicholson, 21 Vet. App. 89, 94 (2007). Bilateral Hearing Loss The Veteran's bilateral hearing loss has been noncompensably rated under Diagnostic Code 6100. Under Diagnostic Code 6100, evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold levels, as measured by pure-tone audiometric tests, in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from level I, for essential normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, et seq., and Part 4, Code 6100-6101 (2013). Under 38 C.F.R. § 4.86, when the pure-tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Also, when the 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 then elevate the numeral to the next higher numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86 (2013). At no time during the appeal period has audiometry demonstrated a pure-tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, or, pure-tone thresholds of 55 decibels or more at each of the four specified frequencies. In October 2006, the RO granted service connection for a bilateral hearing loss and assigned a noncompensable rating. The RO based this initial rating on a June 2006 VA audiometry evaluation that reflects pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 50 40 50 LEFT 20 15 45 30 35 Average pure tone thresholds were 40 in the right ear and 31 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in each ear. According to the October 2006 VA audiometry and Table VI, both ears are at level I. Applying such findings to Table VII results in the assignment of a noncompensable rating. Upon audiological re-examination in November 2011, which was conducted pursuant to the Board's September 2011 remand, average pure-tone thresholds were 42 in the right ear and 45 in the left ear. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 100 percent in the left ear. The diagnosis was simply sensorineural hearing loss in each ear. According to the November 2011 VA audiometry, both ears remain at level I. Applying such findings to Table VII results in the assignment of a noncompensable rating. The Veteran reported that his hearing loss disability caused difficulty in his occupation as a pastor when he was without his hearing amplification aids. The audiologist noted, however, that the Veteran conversed easily when wearing his new hearing aids. Because none of the competent medical evidence reflects that the criteria for a schedular rating greater than zero percent are met at any time, after considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3. The claim for a compensable initial schedular rating for bilateral hearing loss must be denied for the entire appeal period. Extraschedular Consideration The provisions of 38 C.F.R. § 3.321(b) (2013) provide that where the disability picture (that is, all service-connected disabilities considered together) is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extraschedular evaluation will be assigned. Where the veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extra-schedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has stressed that consideration of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The Court set forth that the first step in determining entitlement to this benefit is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Thun, 22 Vet. App. at 115. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted. Id. Moreover, in Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the United States Court of Appeals for the Federal Circuit (Federal Circuit) interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit then stressed: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Id, at 1368. In this case, the established schedular criteria for myoclonus and for bilateral hearing loss have not been shown or alleged to be inadequate to describe the severity and symptoms of these disabilities; the case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and, there is no evidence that an extra-schedular disability rating would be in the interest of justice. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). Additionally, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record does not reasonably raise the question of unemployability, nor has the claimant raised this issue. ORDER For the period prior to November 15, 2011, a separate 10 percent schedular rating for myoclonus of the right hand is granted, subject to the laws and regulations governing payment of monetary benefits. For the period prior to November 15, 2011, a separate 10 percent schedular rating for myoclonus of the left hand is granted, subject to the laws and regulations governing payment of monetary benefits. For the entire appeal period, a 10 percent schedular rating for myoclonus of the right foot is granted, subject to the laws and regulations governing payment of monetary benefits. For the period commencing on November 15, 2011, an initial schedular rating greater than 10 percent myoclonus of the right hand is denied. An initial compensable schedular rating for bilateral hearing loss is denied. ______________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs