Citation Nr: 1117441	
Decision Date: 05/05/11    Archive Date: 05/17/11

DOCKET NO.  08-14 416	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J Fussell



INTRODUCTION

The Veteran served on active duty from October 1955 to October 1958.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which granted service connection for a residual scar of the right middle finger which was assigned an initial noncompensable disability rating and which denied service connection for bilateral hearing loss and tinnitus.  The Veteran appealed all of the actions taken in that decision; however, the September 2006 Statement of the Case (SOC) addressed only the issue of entitlement to an initial compensable rating for the right middle finger scar.  Subsequently, a September 2006 rating decision granted a 10 percent rating for the right middle finger scar and also granted service connection for bilateral hearing loss which was assigned an initial noncompensable disability rating, and both grants were made effective August  18, 2005 (date of receipt of the original claim for that disability).  Likewise, service connection was granted for tinnitus, which was assigned a maximum schedular initial rating of 10 percent, rating effective August 18, 2005.  The Veteran was notified of that decision by RO letter of September 16, 2006.  

Later in September 2006 the Veteran withdrew his claim for an increased rating for the scar of the right middle finger.  

However, in October 2006 the Veteran filed a Notice of Disagreement (NOD) with the other actions of the September 2006 rating decision.  This would encompass the assignment of an initial 10 percent rating for tinnitus.  In March 2007 the Veteran specifically withdrew his appeal as to the disability evaluations assigned for the right middle finger scar and tinnitus.  

This case was remanded in December 2010 for additional audiometric testing.  This was accomplished in January 2011 and, so, the case has been returned to the Board. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

VA and private audiometric testing reveal that the Veteran has no more than level III hearing loss in each ear.  


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss are not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.14, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2010).    


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Duty to Notify

The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).  

The appeal arises from the Veteran's disagreement with the initial rating assigned following a grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Accordingly, the Board finds that VA has satisfied its duties to notify the Veteran in this case.

Duty to Assist

As to VA's duty to assist, VA has associated with the claim file the Veteran's service treatment records, private clinical records, and VA outpatient treatment (VAOPT) records, and afforded him rating examinations with respect to the claim.  

The reports of the VA examinations conducted in this case show that the examinations were thorough and the findings are supported by the outpatient treatment records.  Thus, the examinations overall are adequate bases upon which to base a decision.  

The Board finds these actions have satisfied VA's duty to assist and that no additional assistance is required.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  

Background

Private clinical records show that a CT of the Veteran's paranasal sinuses in August  1999 indicated the presence of sinusitis and right ear congestion. 

In September 1999 the Veteran underwent a right Caldwell-Luc surgical procedure at a private facility due to a right maxillary sinus cyst.  

Private clinical records show that the Veteran was treated in 1995 for impacted cerumen in his ears and 1998 for recurrent right serous otitis media.  

Private audiometric testing in April 1998 (as interpreted at the time of the January 2011 VA examination) yielded the following: 

Hertz
1,000
2,000
3,000
4,000
Average
Left
10
35
75
75
49
Right
35
60
110
No Response


Speech recognition was 88 percent in left ear and 72 percent in the right ear. 

Private audiometric testing in November 1999 (as interpreted at the time of the January 2011 VA examination) yielded the following:

Hertz
1,000
2,000
3,000
4,000
Average
Left
5
30
75
75
46
Right
10
30
80
95
54

Speech recognition was 88 percent in each ear. 

A private clinical record shows that the Veteran was seen in June 2000 for right external otitis, possible secretory otitis media, and for bilateral hearing loss. 

An April 2003 private clinical record shows that the Veteran had had 3 sets of tympanostomy tubes put in his right ear.  An attempt to place another tube through the right tympanic membrane resulted in a larger perforation that was desired and it was elected not to insert another tube.  The diagnosis was Eustachian tube dysfunction.  

VAOPT records of 2004 and 2005 show that the Veteran reported that over the last 7 years he had had tubes placed in his right ear on three occasions. 

A May 2006 private clinical record noted that the Veteran had a history of right-sided myrinotomy with tube place done in 2003 but had recently had more drainage from the right ear.  The diagnosis was right-sided otitis with granular myringitis.  

VA August 2006 audiological examination yielded the following:

Hertz
1,000
2,000
3,000
4,000
Average
Left
15
50
80
80
56
Right
15
45
80
90
58

Speech recognition was 88 percent in both the right and left ears.  The Veteran reported having had right ear otitis media and Eustachian tube dysfunction beginning in 1986.  He had 4 or 5 myringotomies with place of ventilation tubes in his right ear, with the most recent being in 2004.  He complained of tinnitus in his right ear and difficulty hearing speech because of the noises in his right ear.  It was commented that he would experience difficulty hearing conversational level speech in group listening situations.  His tinnitus was felt to be as likely as not related to inservice military noise exposure but his current hearing loss and recurrent middle ear infections were probably not related to his inservice noise exposure.  

Dr. S. J. M. reported in October 2006 that he treated the Veteran.  The Veteran had a noise-induced sensorineural hearing loss pattern.  He also had tinnitus.  He had significant inservice noise exposure.  That physician felt that there was a connection between the inservice noise exposure and the current hearing loss and tinnitus.  

Private audiometric testing in October 2006 (as interpreted at the time of the January 2011 VA examination) yielded the following: 

Hertz
1,000
2,000
3,000
4,000
Average
Left
20
45
80
80
56
Right
20
50
90
100
65

Speech recognition was 96 percent in each ear.

The Veteran was examined again by the VA in March 2007 which yielded the following:

Hertz
1,000
2,000
3,000
4,000
Average
Left
20
45
85
85
59
Right
20
50
90
95
64

Speech recognition was 84 percent in the right ear and 88 percent in the left ear.  The Veteran complained of hearing loss and a chirping noise in his right ear.  His greatest difficulty was hearing speech when there was background noise.  On otoscopic examination the Veteran's ear canals and tympanic membranes were intact, bilaterally.  A pressure-equalizer tube (PET) was in place in the right ear.  It was noted that he had had postservice noise exposure working as a carpenter in a Corning Factory and as a truck mechanic.  Due to the patent pressure-equalizer tube with the absence of drainage, no further medical follow-up was indicated.  

In March 2009 Dr. E. G. T. reported that over the years the Veteran's hearing loss had been compounded by age-related changes in his hearing.  He continued to demonstrate deterioration in his hearing acuity.  

VA treatment records indicate that in November 2009, the Veteran reported that his right ear felt "stopped up" and that his hearing had decreased.  He was also seen that month for drainage of his right ear. 

The Veteran was examined again by the VA in January 2011 which revealed audiometric test results, in decibels, as below:

Hertz
1,000
2,000
3,000
4,000
Average
Left
20
40
90
90
60
Right
40
65
90
105
75

Speech recognition was 84 percent in the right ear and 88 percent in the left ear.  

The results of all past audiometric tests, both private and VA, were reviewed.  It was also observed that several treatment notes since 2006 had noted that the Veteran hearing was "grossly normal" based upon how he communicated with hearing care providers, although this was not sensitive to high frequency hearing loss.  The Veteran's chief complaint was being unable to distinguish words and that other people sounded as if they were mumbling.  After service he had worked on an assembly line for Mack truck for 9 years and had worked as an automobile mechanic at his garage for 30 years.  Recreationally, he hunted without the use of ear protection.  

Elsewhere in the report, it was indicated that the Veteran's threshold in the left ear at 1,000 Hertz was 15 decibels (rather than 20 decibels).  A summary of the test results was that there was a significant shift from the March 2007 examination at 2,000 Hertz in the right ear (an increase from 2007 to 2009 of 15 decibels) but there was no shift in hearing threshold in the left ear when current test results were compared to the results of the March 2007 examination.  

As to significant occupational effects, the Veteran would have difficulty in understanding conversational speech, especially when in a noisy environment, such as difficulty following instructions.  However, there were no effects as to his usual daily activities. 

General Rating Principles

Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity.  Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155.  Disabilities are viewed, and examinations are interpreted, historically, in order to accurately reflect the elements of disability present.  38 C.F.R. § 4.1, 4.2.  A higher rating is assigned if it more nearly approximates such rating.  See 38 C.F.R. §§ 4.7, 4.21.  

Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119 (1999) (initial staged ratings). 

Rating Criteria for Bilateral Hearing Loss

The severity of a hearing loss disability is determined by applying the criteria set forth in the Rating Schedule at 38 C.F.R. § 4.85.  Under the applicable rating criteria, a rating for bilateral lateral hearing loss may 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 in decibels, measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85(a) and (d).  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).  

The Rating Schedule establishes eleven auditory acuity levels under 38 C.F.R. § 4.85, Diagnostic Code 6100.

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  38 C.F.R. § 4.85(b). 

Puretone threshold average, measured in decibels, as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA.  38 C.F.R. § 4.85(d).   

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(e).  

38 C.F.R. § 4.85(b) requires that TABLE VI be used to determine the numeric designation for hearing loss in each ear, except as specified in 38 C.F.R. § 4.85(c) and 38 C.F.R. § 4.86(a) and (b), which allow for the use of Table VIA.  

38 C.F.R. § 4.85(c) provides that TABLE VIA is used when the examiner certifies that the use of speech discrimination testing is not appropriate because of language difficulties, inconsistent speech discrimination scores or other reasons.  

Under 38 C.F.R. § 4.86(a) when the puretone threshold at each of the four specified frequencies 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, Table VI or Table VIA is to be used, whichever results in the higher numeral.  Under 38 C.F.R. § 4.86(b) when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, Table VI or Table VIA is to be used, whichever results in the higher numeral.  That numeral will then be elevated to the next higher numeral.  38 C.F.R. § 4.86.  

Analysis

Initially, the Board notes that the private audiometric testing in April 1998 is not valid for rating purposes because no results were obtained for the Veteran's hearing acuity in the right ear at 4,000 Hertz.  All other testing has revealed that he can distinguish sound at the frequency in the right ear.  

Audiometric Evaluation in November 1999

On private audiology evaluation in November 1999, the pure tone thresholds in the right ear yielded an average decibel loss rounded to 54.  Pure tone thresholds in the left ear yielded an average decibel loss rounded to 46.  Speech recognition or discrimination was 88 percent in each ear.  

The findings for the right ear yield a numerical designation of II under TABLE VI as the average puretone decibel loss of 54 is in the range of between 50 and 57 and the speech discrimination score of 88 percent is the range of between 84 and 90 percent. 

The findings for the left ear yield a numerical designation of II under TABLE VI as the average puretone decibel loss of 46 is in the range of between 42 and 49 and the speech discrimination score of 88 percent is the range of between 84 and 92 percent. 

Entering the numeral designations of II and II to TABLE VII yields a noncompensable disability rating under Diagnostic Code 6100. 

The puretone threshold was not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz and, so, the provisions of 38 C.F.R. § 4.86(b) are not applicable.  
Also, the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz were not 55 decibels or more and, so, an exceptional pattern of hearing impairment is not shown under 38 C.F.R. § 4.86(a).  
Also, the November 1999 examiner did not certify that the use of speech discrimination scores was not appropriate.  Thus, 38 C.F.R. § 4.85(c) is also not applicable.  

VA Audiometric Evaluation in August 2006

On VA audiology evaluation in August 2006 the pure tone thresholds in the right ear yielded an average decibel loss rounded to 58.  Pure tone thresholds in the left ear yielded an average decibel loss rounded to 56.  Speech recognition or discrimination was 88 percent in each ear. 

The findings for the right ear yield a numerical designation of III under TABLE VI as the average puretone decibel loss of 58 is in the range of between 58 and 65 and the speech discrimination score of 88 percent is the range of between 84 and 90 percent. 

The findings for the left ear yield a numerical designation of II under TABLE VI as the average puretone decibel loss of 56 is in the range of between 50 and 57 and the speech discrimination score of 88 percent is the range of between 84 and 90 percent. 

Entering the numeral designations of III and II to TABLE VII yields a noncompensable disability rating under Diagnostic Code 6100. 

The puretone threshold was not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz and, so, the provisions of 38 C.F.R. § 4.86(b) are not applicable.  
Also, the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz were not 55 decibels or more and, so, an exceptional pattern of hearing impairment is not shown under 38 C.F.R. § 4.86(a).  
Also, the August 2006 VA examiner did not certify that the use of speech discrimination scores was not appropriate.  Thus, 38 C.F.R. § 4.85(c) is also not applicable.  

Private Audiometric Evaluation in October 2006

On private audiology evaluation in October 2006 the pure tone thresholds in the right ear yielded with an average decibel loss rounded to 65.  Pure tone thresholds in the left ear yielded average decibel loss rounded to 56.  Speech recognition or discrimination was 96 percent in each ear. 

The findings for the right ear yield a numerical designation of II under TABLE VI as the average puretone decibel loss of 65 is in the range of between 58 and 65 and the speech discrimination score of 96 percent is the range of between 92 and 100 percent. 

The findings for the left ear yield a numerical designation of I under TABLE VI as the average puretone decibel loss of 56 is in the range of between 50 and 57 and the speech discrimination score of 96 percent is the range of between 92 and 100 percent. 

Entering the numeral designations of II and I to TABLE VII yields a noncompensable disability rating under Diagnostic Code 6100. 

The puretone threshold was not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz and, so, the provisions of 38 C.F.R. § 4.86(b) are not applicable.  
Also, the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz were not 55 decibels or more and, so, an exceptional pattern of hearing impairment is not shown under 38 C.F.R. § 4.86(a).  
Also, the October 2006 private examiner did not certify that the use of speech discrimination scores was not appropriate.  Thus, 38 C.F.R. § 4.85(c) is also not applicable.  

VA Audiometric Evaluation in March 2007

On VA audiology evaluation in March 2007 the pure tone thresholds in the right ear yielded an average decibel loss rounded to 64.  Pure tone thresholds in the left ear yielded an average decibel loss rounded to 59.  Speech recognition or discrimination was 84 percent in the right ear and 88 in the left ear. 

The findings for the right ear yield a numerical designation of III under TABLE VI as the average puretone decibel loss of 64 is in the range of between 58 and 65 and the speech discrimination score of 84 percent is the range of between 84 and 90 percent. 

The findings for the left ear yield a numerical designation of III under TABLE VI as the average puretone decibel loss of 59 is in the range of between 58 and 65 and the speech discrimination score of 88 percent is the range of between 84 and 90 percent. 

Entering the numeral designations of III and III to TABLE VII yields a noncompensable disability rating under Diagnostic Code 6100. 

The puretone threshold was not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz and, so, the provisions of 38 C.F.R. § 4.86(b) are not applicable.  
Also, the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz were not 55 decibels or more and, so, an exceptional pattern of hearing impairment is not shown under 38 C.F.R. § 4.86(a).  
Also, the March 2007 VA examiner did not certify that the use of speech discrimination scores was not appropriate.  Thus, 38 C.F.R. § 4.85(c) is also not applicable.  

VA Audiometric Evaluation in January 2011

On VA audiology evaluation in January 2011, the pure tone thresholds in the right ear yielded an average decibel loss rounded to 75.  Pure tone thresholds in the left ear yielded an average decibel loss rounded to 60.  Speech recognition or discrimination was 84 percent in the right ear and 88 in the left ear. 

The findings for the right ear yield a numerical designation of III under TABLE VI as the average puretone decibel loss of 75 is in the range of between 74 and 81 and the speech discrimination score of 84 percent is the range of between 84 and 90 percent. 

The findings for the left ear yield a numerical designation of III under TABLE VI as the average puretone decibel loss of 59 is in the range of between 58 and 65 and the speech discrimination score of 88 percent is the range of between 84 and 90 percent. 

Entering the numeral designations of III and III to TABLE VII yields a noncompensable disability rating under Diagnostic Code 6100. 

The puretone threshold was not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz and, so, the provisions of 38 C.F.R. § 4.86(b) are not applicable.  Also, the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz were not 55 decibels or more and, so, an exceptional pattern of hearing impairment is not shown under 38 C.F.R. § 4.86(a).  Also, the January 2011 examiner did not certify that the use of speech discrimination scores was not appropriate.  Thus, 38 C.F.R. § 4.85(c) is also not applicable.  

Additionally, while the January 2011 VA examiner also reported that the Veteran's hearing acuity in the left ear at 1,000 Hertz was 15 decibels, rather than 20 decibels as reflected earlier in that report, this would make no difference because the hear acuity would remain at Level II in the left ear.  In other words, even assuming that the correct reading was 20 decibels in the left ear at 1,000 Hertz, the average decibel loss at the respective frequencies would be rounded to 59 which remains in the range of between 58 and 65 and the speech discrimination score of 88 percent remains in the range of between 84 and 90 percent, and this still yields a numerical designation of III under TABLE VI.  

In the December 2010 Board remand it was noted that the Veteran's hearing in his right ear worsened in the period between examinations from August 2006 to March 2007 insofar as the average puretone threshold increased from 58 decibels to 64 decibels.  

At the time of the January 2011 VA examination it was noted that there was a further worsening of hearing acuity since the 2007 examination in the right ear at 2,000 Hertz, a decrease of 15 decibels.  A review of the findings of these two examinations also shows that there was a worsening, of 20 decibels, in the right ear at 1,000 Hertz and 10 decibels at 4,000 Hertz.  Nevertheless, the Veteran's hearing acuity remained at Level III in the right ear on each examination.  

As to conducting audiometric testing when the Veteran had a pressure equalizer tube (PET) in an ear, in Hall v. Nicholson, No. 05-1351, slip op. at 3 (U.S. Vet. App. October 4, 2006) (nonprecedential Order), 21 Vet. App. 418 (Table); 2006 WL 3007574 (Vet.App.) it was alleged that VA audiometric examination did not comply with 38 C.F.R. § 4.85(a) (requiring audiometric examinations to be conducted stated-licensed audiologist and include controlled speech discrimination test (Maryland CNC) and puretone audiometry testing, without the use of hearing aids) because the appellant had a PET in place which it was alleged functioned as a hearing aid by temporary improving his hearing acuity.  However, it was held that 38 C.F.R. § 4.85(a) did not prohibit examinations with an ear tube in place and there was no medical evidence in the record likening the effect of an ear tube to a hearing aid, citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (the appellant as a layperson is not competent to make such a medical determination).  

VA audiologists are to describe the effect of a hearing disability on a claimant's occupational functioning and daily activities.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  "The policy of describing the results of all tests conducted makes sense, particularly in the context of the extraschedular rating provision.  38 C.F.R. § 3.321(b).  Unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.  The Secretary's policy facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application."  Martinak, 21 Vet. App. at 455. 

The 2011 VA examiner observed that VAOPT records showed that the Veteran's hearing acuity for conversations with health care providers was grossly normal, in contradiction to the Veteran's complaints.  VA and private treatment records show that the Veteran has been treated for otitis media, particularly in the right ear.  However, service-connection is not in effect for otitis media and it is for the otitis media that he had a PET inserted in the right ear.  Moreover, the Veteran has reported working for at least 39 years and the evidentiary record does not show that he was given or required any restrictions in his employment due to his hearing loss.  Thus, even though the evidence indicates a progressive worsening of hearing acuity, particularly in the right ear, it must be concluded that there is no impact upon his occupational capability.  The Veteran has not otherwise specifically described any adverse impact upon his employment or his daily activities, other than to mention difficulty in conversations, which is encompassed in the noncompensable disability rating currently assigned.  Accordingly, this is sufficient to comply with the applicable VA policies.  See Martinak, Id. (VA audiologist's indication in report that veteran's hearing loss affected his ability to sleep was sufficient to comply with requirements of VA's own internal guidance documents that VA audiologists describe the effects of a hearing disability on occupational functioning and daily activities).  



Extraschedular Entitlement

Where the schedular criteria for an increased rating are not met, entitlement to the benefit may be established if it is determined that the case presents such an exceptional disability picture that the benefit should be awarded on an extraschedular basis.38 C.F.R. § 3.321(b)(1). 

While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 

The Board finds that the Veteran's disability picture is not so exceptional or unusual as to render impractical the application of the regular schedular standards.  The evidence indicates that much of the Veteran's complaint of difficulty hearing in conversations is due to his service-connected tinnitus, which is separately assigned a 10 percent disability rating.  Also, while there has been a progression of hearing loss, the schedular criteria provide for disability evaluations rating from noncompensable to 100 percent based on a wide range of variables.  And, so the schedular rating criteria are adequate.  For this reason, the Board finds no basis to refer this case for consideration of an extraschedular rating.  Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App.337 (1996); Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir.).

The Board finds that since the claim for service connection was filed in August 2005 the Veteran's service-connected hearing loss has not been compensably disabling, so his rating cannot be "staged" because this represents his greatest level of functional impairment attributable to this condition during that time period.  Fenderson v. West, 12 Vet. App. 119 (1999).  

Here, the preponderance of the evidence is against the claim and, so, the favorable resolution of doubt is not applicable.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  If the Board determines that the preponderance of the evidence is against the claims, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz v. Principi, 274 F.3d 1361, 1361 (Fed. Cir. 2001).  



ORDER

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



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs