Citation Nr: 0811993 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 00-09 495A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased (compensable ) rating for bilateral hearing loss, for the period from November 19, 1999 to January 16, 2003. 2. Entitlement to a rating in excess of 10 percent, for the period from January 17, 2003 to August 27, 2007. 3. Entitlement to a rating in excess of 50 percent for bilateral hearing loss, from August 28, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran served on active duty from September 1940 to January 1946. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2000 rating decision in which the RO denied service connection for left ear hearing loss, and a compensable rating for service-connected right ear hearing loss. In May 2000, the veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued later that month, and the veteran filed a substantive appeal that same month. In April 2001, the veteran testified during a hearing before RO personnel; a transcript of that hearing is associated with the claims file. In May 2002, the veteran testified during a videoconference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of this hearing is associated with the claims file. In October 2002, the Board undertook additional development of the claims under the provisions of 38 C.F.R. § 19.9 (2002). However, the provisions of 38 C.F.R. § 19.9 essentially conferring upon the Board jurisdiction to adjudicate claims on the basis of evidence developed by the Board, but not reviewed by the RO, were later held to be invalid. See Disabled American Veterans (DAV) v. Secretary of Veterans Affairs (Secretary), 327 F.3d 1339 (Fed. Cir. 2003). Hence, after the completion of the previously requested actions, in November 2003, the Board remanded the matters to the RO for initial consideration of the claims in light of the recently developed evidence. In March 2004, the RO granted a higher rating of 10 percent for service- connected right ear hearing loss, effective January 17, 2003. That same month, the RO also continued its denial of service connection for left ear hearing loss (as reflected in a March 2004 supplemental SOC (SSOC)). The Board notes that, when the RO increased the rating for right ear hearing loss from January 17, 2003, the RO then stated that the assigned 10 percent rating constituted a full allowance of the benefits sought on appeal, and that the veteran's claim for increase was therefore considered to have been resolved. However, inasmuch as higher ratings are available for the veteran's hearing loss both before and after January 17, 2003, and the veteran is presumed to seek the maximum available benefit for a disability, the Board considers the appeal involving higher rating for hearing loss as encompassing the claims for increase reflected on the title page. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2005, the undersigned VLJ granted the veteran's motion to advance his appeal on the docket, pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). In March 2005, the Board remanded the claims on appeal to the RO for further development, to include arranging for the veteran to undergo VA examination to obtain nexus opinion. After attempting to complete all requested action, the RO continued its denial of the veteran's claims (as reflected in the December 2006 SSOC). Thereafter, in February 2007, the Board granted the claim for service connection for left ear hearing loss and remanded the claims for higher ratings for bilateral hearing loss (previously right ear hearing loss, but now characterized as bilateral hearing loss, given the grant of service connection for the left ear) to the RO for additional action. After completing the requested action, in an October 2007 decision, the RO granted a higher 50 percent rating for bilateral hearing loss, effective August 28, 2007. That same month, the RO also continued the denial of the veteran's claims for increased ratings for bilateral hearing loss for the earlier periods of time (as reflected in an October 2007 SSOC), and returned these matters to the Board for further appellate consideration. As a final preliminary matter, the Board notes that, in the March 2007 informal hearing presentation the veteran's representative raises the matter of special monthly compensation under 38 C.F.R. § 3.350. However, the RO has not adjudicated the claim, it is not properly before the Board; hence, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim on appeal has been accomplished. 2. For the period from November 19, 1999, to August 27, 2007, the only reliable audiometric testing revealed Level VIII hearing in the right ear and Level VI hearing in the left ear. 3.On August 28, 2007, audiometric testing revealed Level IX hearing in the right ear and Level VIII hearing in the left ear. CONCLUSION OF LAW 1. The criteria for a 40 percent rating for bilateral hearing loss, for the period from November 19, 1999 to August 27, 2007, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.350, 3.385, 4.1, 4.2, 4.7, 4.85 (Diagnostic Code 6100), and 4.86 (2007). 2. The criteria for a rating in excess of a 50 percent for bilateral hearing loss, since August 28, 2007, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.350, 3.385, 4.1, 4.2, 4.7, 4.85 (Diagnostic Code 6100), and 4.86 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 and Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also is aware of the recent decision in Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), applicable to claims for increased ratings. In Vazquez-Flores, the Court found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, the May 2000 SOC set forth the criteria for higher ratings for bilateral hearing loss. The January 2001, March 2006, December 2006, and May 2007 post-rating letters provided notice to the veteran regarding what information and evidence was needed to substantiate a claim for an increased rating, as well as what information and evidence must be submitted by the veteran, what information and evidence would be obtained by VA, and the need for the veteran to advise VA of and to submit any further evidence that is relevant to the claim. The March 2006, December 2006, and May 2007 letters also informed the veteran how disability ratings and effective dates are assigned and the type of evidence that impacts those determinations. These letters also informed the veteran that he should provide the RO with any evidence or information that he may have pertaining to his claim. Following the issuance of each notice described above, the veteran and his representative were afforded further opportunities to present pertinent information and/or evidence to the matter on appeal before the RO readjudicated the claim (as reflected in the January 2002, December 2006, and October 2007 SSOCs). Hence, the veteran is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a SOC or SSOC, is sufficient to cure a timing defect). The Board acknowledges that the VCAA letters provided to the veteran do not contain the level of specificity set forth in Vazquez-Flores. However, the Board find that any such procedural defect does nor constitute prejudicial error in this case because of evidence of actual knowledge on the part of the veteran and his representative that the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life and other documentation in the claims file reflecting such notification that a reasonable person could be expected to understand what was needed to substantiate the claim(s). See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this regard, the veteran has provided testimony, submitted a September 2006 private audiometric report, and also statements from his representative addressing the increase in severity of his bilateral hearing loss, the effects such increase has on his daily life, and the specific application of the rating criteria to the various audiometric findings, discussed in more detail below. These statements indicate an awareness on the part of the veteran that information about such effects, with specific examples, is necessary to substantiate a claim for a higher rating. Significantly, the Court in Vazquez- Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim." Id., slip op. at 12, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of the veteran's VA medical records, a private audiometric report conducted in April 2001, and the reports of VA audiological examinations conducted in December 1999, August 2000, January 2003, August 2003, May 2006, September 2006, and August 2007, which include audiometric findings although some were determined by the examiners as not reliable. Also of record is the transcript of the April 2001 DRO hearing, as well as the transcript of the May 2002 Board video hearing before the undersigned. In addition, various written statements provided by the veteran, and his representative, on his behalf, are associated with the claims file. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the veteran has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Background In November 1999, the veteran filed his current claim for an increased (compensable) rating for what was then right ear hearing loss along with a claim for service connection for left ear hearing loss. A December 1999 VA audiological evaluation revealed moderate to profound sensorineural hearing loss and poor speech discrimination in the right ear, and mild to severe sensorineural hearing loss and fair speech discrimination in the left ear. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 80 95 90 100 91.25 LEFT 45 60 75 85 66.25 Speech discrimination scores on the Maryland CNC word list were 56 percent in the right ear and 74 percent in the left ear. A February 2000 VA audiology record reflects that the veteran received and was fitted with bilateral hearing aids. An August 8, 2000 VA audiological evaluation revealed mild to profound sensorineural hearing loss, bilaterally, with poor speech discrimination in the right ear and fair speech discrimination in the left ear. The examiner noted that these results were similar to those in November 1999; however, there was fluctuation in the low frequencies which was a possible indication of Meniere's disease. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 70 85 90 105 87.5 LEFT 45 70 80 90 71.25 Speech discrimination scores on the Maryland CNC word list were 48 percent in the right ear and 76 percent in the left ear. The veteran has submitted an April 2001 private audiometric report reflecting an uninterpreted audiogram, which the Board may not consider as evidence. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (the Board may not interpret graphical representations of audiometric data). A January 2003 VA audiological evaluation revealed severe to profound slightly mixed hearing loss bilaterally. The examiner reported that acoustic reflex thresholds could not be tested as an adequate seal could not be maintained. The "right" ear had a type A tympanogram at positive 5 and normal to slightly elevated acoustic reflexes. The examiner furthered that the testing results had fair reliability given that the veteran was able to communicate with him face to face, in that the examiner's voice was 65 db. In addition, the examiner pointed out that with this severe of a hearing loss, normal acoustic reflexes would not be seen ipsilaterally or contralaterally for 500 or 1000 hertz on the left side. The examiner suggested, due to the fair reliability, repeat testing by another audiologist at another facility. Audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 95 100 110 110+ n/a LEFT 85 110 110+ 110+ n/a Speech discrimination scores on the Maryland CNC word list were 22 percent in the right ear and 36 percent in the left ear. The examiner noted that the veteran wore hearing aids. A March 2003 VA examination report notes that TMs were intact. Audiogram showed that the veteran had hearing loss, worse in the high frequencies. The impression was noise induced hearing loss. The examiner noted that he did not have the claims file and no audiometric findings were provided. A June 2003 VA ear disease examination report notes that the veteran's audiogram from earlier in the year shows bilateral hearing loss across in all frequencies, worse in high frequencies. An August 2003 VA audiological evaluation revealed severe to profound sensorineural hearing loss in the right ear and moderate to severe sensorineural hearing loss in the left ear. The examiner noted that middle ear testing revealed a type A tympanogram in the middle ear. He could not seal the right ear to obtain a tympanogram or reflexes and the reflexes could not be obtained in the left ear due to seal difficulties. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 75 90 90 95 87.5 LEFT 65 80 80 85 77.55 Speech discrimination scores on the Maryland CNC word list were 16 percent in the right ear and 40 percent in the left ear. In March 2004, the RO assigned a 10 percent rating for bilateral hearing loss, effective January 17, 2003. A May 2006 VA audiological evaluation revealed moderately severe to profound sensorineural hearing loss with poor speech discrimination in the right ear, and severe to profound sensorineural hearing loss with poor speech discrimination in the left ear. Type A deep tympanogram with normal to elevated ipsilaterally reflexes, left ear. The examiner noted that, for the right ear, he could not maintain a seal for tympanogram or acoustic reflexes, so testing results had fair to poor reliability. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 95 105 105+ 105+ 102.5 LEFT 85 95 100 105 96.25 Speech discrimination scores on the Maryland CNC word list were 18 percent in the right ear and 38 percent in the left ear. The examiner recommended a VA audiological auditory brainstem (ABR) test to help identify pure tone thresholds. In September 2006, the veteran underwent an additional VA audiology examination in which a VA audiological auditory brainstem (ABR) test was performed to estimate the pure tone thresholds of the veteran. It was done because of the fair to poor reliability seen with behavioral testing during the May 2006 VA examination. The audiological ABR results of the right ear showed a wave V latency of 70dBNhl. The examiner stated that this estimates that pure tone thresholds in the 2 to 4kHZ region of the right ear are in the range of 60dBhl to 80dBhl. The examiner explained that this test is involuntary and does not require a response from the veteran in comparison to behavioral pure tone and speech audiometry testing which does. The left ear could not be completed as a good skin impedance could not be maintained even after repeated electrode replacements and cleaning of the skin. The examiner concluded that these results indicated that the veteran is able to hear better than the reported behavioral testing showed on the May 2006 VA audiogram, at least in the right ear. She is unable to confirm why the veteran is unable or unwilling to respond to his lowest level of hearing with behavioral testing. The examiner furthered that unless the veteran is able and willing to give the appropriate behavioral responses, his true pure tone threshold and speech audiometry results may never be known. The examiner opined that an increase is not indicated if reliable results from the veteran can not be obtained. In a February 2007 decision, the Board granted service connection for left ear hearing loss and remanded the claim for an increased rating to the RO. Consequently, the increased rating claim was recharacterized to reflect that the veteran was now seeking a compensable rating for service- connected bilateral hearing loss from November 19, 1999 (the date of receipt of the claim for service connection for left ear hearing loss and for an increased rating) to January 16, 2003; and for a rating in excess of 10 percent for bilateral hearing loss, from January 17, 2003. An August 2007 VA audiological evaluation revealed moderate to severe sensorineural hearing loss, bilaterally with poor word discrimination. Right ear, Type A tympanogram, could not test reflexes or decay due to pressurization. Left ear, Type A tympanogram with normal reflexes and no decay. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 60 80 80 80 75 LEFT 55 75 75 80 71.25 Speech discrimination scores on the Maryland CNC word list were 36 percent in the right ear and 52 percent in the left ear. In October 2007, the RO assigned a 50 percent rating for bilateral hearing loss, effective August 28, 2007. III. Analysis Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. Ratings for hearing impairment 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 level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2007). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are evaluated under 38 C.F.R. § 4.86 (2007). (a) 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. Each ear will be evaluated separately. (b) 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. As noted above, under VA rating criteria, an adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2007). However, VA audiologists have twice indicated that audiometric testing results were unreliable and they clearly questioned the appropriateness of the veteran's responses during testing. Significantly, the January 2003 VA audiologist commented on the discrepancy between the veteran's observed satisfactory hearing acuity when he was speaking with the examiner, in contrast to actual hearing acuity after the formal testing began. In the audiologist's report, he also reported that with this severe of a hearing loss shown on audiometric testing, the veteran should not have normal acoustic reflexes on either his right or left side; however, as noted above, the veteran was found to have near normal acoustic reflexes in one ear. In addition, the VA audiological examiner who performed the May 2006 VA audiometric testing found that those testing results had fair to poor reliability because the veteran could not maintain a seal for right ear tympanogram or acoustic reflexes. In response to her recommendation, in September 2006, the veteran underwent ABR testing, which was intended to provide an objective indication of hearing loss; those results did not support the findings that were recorded by pure tone testing during the May 2006 VA examination. Additionally, in light of the September 2006 ABR objective results that support the January 2003, May 2006, and September 2006 examiner's opinions that the veteran is not providing reliable behavioral testing results, in part, because of his difficulties maintaining a seal for tympanogram or acoustic reflexes, the Board also finds that the testing results from the August 2003 VA examination are also not reliable since a seal could not be obtained at that time as well. In sum, the results obtained by VA audiology testing in January 2003, August 2003, and May 2006 are inadequate for rating purposes. Applying the criteria for evaluating bilateral hearing loss to the results of the December 1999 audiometric evaluation, the veteran has Level VIII hearing in the right ear, and Level VI hearing in the left ear, based on application of the reported findings to Tables VI. Under Table VII, the combination of Level VIII for the poorer ear combined with Level VI for the better ear warrants a 40 percent rating. under 38 C.F.R. § 4.85, Diagnostic Code 6100. Here, however, because the veteran's right ear pure tone thresholds are all 55 decibels or more, the provisions of 38 C.F.R. § 4.86(a) are for application. However, the Board finds that application of that regulatory section results in the same 40 percent rating. Under Table VIa, the right ear pure tone threshold average of 91.25 warrants a Roman numeral designation of IX, which is higher than the Roman numeral designation of VIII under Table VI. The IX, now for the right ear, when combined with the left ear designation of VI, results in a 40 percent rating. Thus, based on application of VA's method for evaluating hearing loss, the Board finds that, for the period from November 19, 1999, to August 27, 2007, the veteran is entitled to a 40 percent, but no higher rating, for bilateral hearing loss. Applying the criteria for evaluating bilateral hearing loss to the results of the August 28, 2007 VA audiological evaluation, the veteran has Level IX hearing in the right ear and Level VIII hearing in the left ear, based on application of the reported findings to Tables VI. Under Table VII, the combination of Level IX for the poorer ear combined with Level VIII for the better ear warrants a 50 percent rating. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2007). Here, because the veteran's right and left ear pure tone thresholds are all 55 decibels or more, the provisions of 38 C.F.R. § 4.86(a) are for application. However, application of the reported findings to Table VIa warrant a lower, Roman numeral VI for the right ear and a lower, Roman numeral VI for the left ear. Thus, Roman numeral designations for hearing impairment from Table VI for the right and left ears are appropriate. Hence, as subsequent VA audiological testing reflects that the veteran's hearing loss warrants a 50 percent rating based on application of VA's method for evaluating hearing loss, the veteran is appropriately assigned a 50 percent rating, but no higher, as of the August 28, 2007 audiological examination. The veteran in his hearing testimony and written statements has noted the difficulties caused by his bilateral defective hearing. The Board in no way discounts these difficulties. However, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the veteran's audiometry results. See 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.1 (2007). As a final point, given the mechanical nature of deriving the evaluation for the veteran's bilateral defective hearing, it would appear that the provisions of 38 C.F.R. § 3.321 (2007) (for assignment of a higher rating on an extra- schedular basis, as cited to and discussed in the December 2006 SSOC) would be inapplicable in the evaluation of his claim. However, even if consideration of those provisions in rating this disability were appropriate, the Board notes that the disability has not objectively been shown to markedly interfere with the veteran's employment (in this regard he is not employed) (i.e., beyond that contemplated in the assigned rating), or to warrant frequent periods of hospitalization, nor has the disability otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence of any of the factors outlined above, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) have not been met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 40 percent rating for bilateral hearing loss, for the period from November 19, 1999, to August 27, 2007, is granted, subject to the pertinent legal authority governing the payment of monetary benefits. A rating in excess of 50 percent for bilateral hearing loss, from August 28, 2007, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs