Citation Nr: 1302893 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 10-27 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to an initial compensable disability rating prior to September 1, 2011 for bilateral hearing loss disability. 3. Entitlement to an initial disability rating in excess of 10 percent from September 1, 2011 for bilateral hearing loss disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1954 to February 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. When this case was before the Board in July 2011, it was remanded for additional development. The case has since been returned to the Board for further appellate action. In December 2010, the Veteran testified at a Travel Board hearing. A transcript of the hearing is of record. The Veterans Law Judge that conducted the hearing has since left the Board. As such, the Veteran was afforded the opportunity for another hearing in a December 2012 letter from the Board. In a December 2012 written reply, the Veteran indicated that he did not wish to appear at another hearing and requested the Board to consider the case on the evidence of record. A September 2012 rating decision increased the evaluation for the Veteran's bilateral hearing loss disability to 10 percent, effective September 1, 2011. While the Veteran has been granted a rating increase for his bilateral hearing loss disability during the pendency of his appeal, this rating does not represent the highest possible benefit, and therefore, this issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has recharacterized the issues accordingly, as set forth above. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims processing system (Virtual VA) electronic file associated with the Veteran's claims. A review of the documents in the electronic file reveals that some documents are non-duplicative of those in the paper claims file and are relevant to the issues decided in this matter. Specifically, the Virtual VA file contains evidence of the Veteran's ongoing VA treatment from December 2009 to April 2012. These documents were considered by the RO when the Veteran's claims were previously adjudicated. As such, the Board notes that it considered these records as well as the paper claims file in deciding this case. The Board notes that the issue of entitlement to service connection for tinnitus was referred to the Agency of Original Jurisdiction (AOJ) in the Board's July 2011 remand. A review of the record indicates that, while the Appeals Management Center (AMC) noted the inferred issue, no further action has been taken by the RO. The Board does not have jurisdiction over this issue as it is not currently on appeal, and it is again referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A lumbar spine disorder, to include degenerative disc disease, did not manifest in service or within one year of separation and is not related to any period of active duty. 2. For the period prior to September 1, 2011, on VA audiological testing, the Veteran's hearing acuity was no worse than level II in the right ear and level III in the left ear. 3. For the period from September 1, 2011, on VA audiological testing, the Veteran's hearing acuity was no worse than level IV in the right ear and level V in the left ear. CONCLUSIONS OF LAW 1. A lumbar spine disorder was not incurred in or aggravated by service, and arthritis was not manifest to a compensable degree within one year of separation. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for an initial compensable disability rating prior to September 1, 2011 for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). 3. The criteria for an evaluation in excess of 10 percent rating from September 1, 2011 for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided all required VCAA notice in regard to his original claims for service connection in a November 2008 letter, prior to the initial adjudication of the claims in July 2009. Further, the Veteran's bilateral hearing loss disability claims on appeal have arisen from an appeal of the initial evaluation following the 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). Therefore, in this instance, no further notice is needed under the VCAA. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. In accordance with the Board's July 2011 remand, the AMC sent a letter to the Veteran in July 2011 requesting that he identify and provide completed authorization forms for all health care providers that have treated him, to include Physical Therapist Sprague and Dr. Stewart. The letter included a blank VA Form 21-4142, Authorization and Consent to Release Information. A review of the file indicates that the Veteran did not return completed authorization forms to allow the AMC to obtain these records. As such, the Board finds that the AMC fulfilled the duty to assist in this regard. The Board notes that the RO/AMC was able to obtain only partial STRs. Specifically, the Veteran's representative indicated that there was a possibility of outstanding STRs sent to the former Syracuse, New York RO in relation to a previous matter. Notably, however, the available STRs included the Veteran's separation examination. The representative also requested that the RO/AMC obtain the Veteran's service personnel records (SPRs), and these records were obtained. The AMC noted the attempts made to obtain all STRs in a February 2012 formal finding memorandum, including notifying the Veteran of the same in a January 2012 letter, providing types of additional evidence the Veteran could submit to support his claim. The Board finds that the AMC fulfilled the duty to assist the Veteran in regard to obtaining his available STRs, as further attempts to obtain these records would be futile. 38 C.F.R. § 3.159. The Veteran's written statements are also of record. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Further, the Veteran was also afforded an opportunity to present testimony at a hearing before the Board in December 2010; he was also given the opportunity for an additional hearing but declined. In addition, the Veteran was afforded appropriate VA examinations in connection with his claims. The Board finds that the examinations were adequate, in that the exams were conducted by a medical professional who reviewed the claims file, solicited history from the Veteran, and performed thorough examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In sum, the Board finds that VA has complied with its duty to assist the Veteran. Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis A. Service Connection - Lumbar Spine Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he has a current lumbar spine disorder as a result of a back injury sustained during service. Specifically, he alleges that he slipped and fell on a hangar deck while service in China Lake, California in January 1957 and was treated with traction for a period of several days prior to his release from active duty in February 1957. A review of the Veteran's SPRs show that he was stationed in China Lake, California from 1955 to 1957. A review of the Veteran's STRs shows one in-service complaint of pain in the neck and back in late February 1956; the STRs are otherwise silent for complaints, treatment, or a diagnosis of arthritis or another a lumbar spine disorder. On examination at separation in February 1957, the spine and other musculoskeletal were found to be "normal." The Veteran indicated that he sought treatment for his lumbar spine over the years following service from a number of private treatment providers. Unfortunately, some of these records were no longer available; in other instances, the Veteran did not complete the necessary authorizations to allow VA to attempt to obtain the records, as previously discussed. A review of the available post-service medical records indicates that the Veteran established care with the VA system around July 2001. VA treatment reports of record from July 2001 to April 2012 are silent for complaints, treatment, or diagnoses of arthritis or other lumbar spine disorders. The Veteran sought private chiropractic treatment (Dr. RW) from 2007-2008. In a November 2007 patient case history report, the Veteran reported occasional low back pain but denied a history of arthritis symptoms and fractured bones other than a broken ankle. He also reported sustaining a herniated nucleus pulposus injury in the late 1980s that was treated with therapy in Ithaca, New York. He complained at that time of steady pain on the left side of the lower back radiating into his left leg that began several days prior after golfing, with a similar occurrence 2.5 years prior. He reported that this condition was not due to an accident. In a January 2009 written submission, the Veteran stated that he was having trouble with his back since separation from the Navy. In the same statement, he indicated that he had experienced intermittent problems with his back for "30 some years." Between the various lists of treatment providers submitted by the Veteran, the earliest notation of physical therapy treatment was approximately 1970-1971. A February 2010 written submission from the Veteran's former employer shows that he worked with the company from 1979-2000 and that upon hire, he disclosed previous back injuries which he attributed to his time served in the Navy. In a February 2010 written statement from the Veteran's wife, she reports her memory of the Veteran's hospitalization for a back injury while in service, and the recurring pain the Veteran has experienced over the years since that time. The Veteran was afforded a VA examination in April 2010, during which he reported intermittent low back pain following his in-service fall from the concrete hangar deck. He also reported that he saw a physician after his release from service that said he had a "crack in the groin bone" and sent him to physical therapy. He had a flare 12-13 years prior to the examination that caused a period of prolonged incapacitation and was treated with physical therapy. In addition, he retired at the age of 65 because it was time to retire, not due to his back. On examination, the impression was degenerative disc disease and fact arthropathy of L5/S1 following an x-ray. The examiner opined that it was less likely than not that the Veteran's current low back pain was secondary to the in-service injury, and that his current degenerative disc disease of the lumbosacral spine was not related to service. As rationale, the examiner stated that following a direct trauma 54 years ago that was significant enough to cause persistent symptoms for five decades, one would expect to see much more atrophy and probably more diffuse findings. While the examiner also noted the lack of documented back complaints between February 1956 and the first documented treatment of record in November 2007, this was not the sole basis for the examiner's opinion, but rather, a supporting factor in the determination. In the June 2010 substantive appeal (VA Form 9), the Veteran indicated that he sought treatment for his low back within 90 days of release from the Navy. He stated that the doctor had passed away, but at the time of treatment, told the Veteran to not get back surgery. During the December 2010 hearing, the Veteran testified that he visited a surgeon about a month and a half following separation from service. He further stated that all he could "remember truthfully" regarding this treatment was that the physician told him there was "a crack in the groin bone or something" and recommended therapy over surgery. See Board Hearing Tr. at 3. In response to a question from his representative regarding the notation of back pain in the February 1956 STR, the Veteran replied that it was due to his in-service fall, for which he was hospitalized and placed in traction. He also recalled periods of physical therapy and treatment with chiropractors, indicating that he did not seek additional treatment with surgeons because of the cost, and reported intermittent pain in his back over time. See Board Hearing Tr. at 2-4, 8. He further testified that no physician had related his current back disorder to the initial trauma he suffered from his in-service injury. See Board Hearing Tr. at 9-10. Upon careful review of the record, the Board finds that service connection for a lumbar spine disorder is not warranted. The Veteran does have a current diagnosis of degenerative disc disease. Furthermore, the Board finds the Veteran's report of the in-service injury credible. However, the evidence of record does not establish a finding of continuity of symptomatology since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Veteran is certainly competent to report as to the symptoms he experiences, such as pain, and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan, supra. Moreover, symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, supra, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). The Board may weigh the absence of contemporaneous medical evidence as a factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. While the Board finds that the Veteran's report of an in-service injury during his service at China Lake is credible, to the extent that he reported that he complained of residual difficulties thereafter during the remainder of his service, such a statement is inconsistent with the normal findings on his examination at separation in February 1957. He also responded that he was seen in February 1956 for complaints of back and neck pain following his in-service fall during the hearing, when he originally reported that the fall occurred in January 1957 in his November 2008 claim. Thus, to the extent the Veteran asserts an in-service onset of symptomatology of a residual lumbar spine disorder, he is not credible. Moreover, the Veteran's statements of record do not establish a consistent report of symptomatology to establish continuity since service. In this regard, a review of the VA treatment records beginning in 2001 shows that the Veteran does not complain of a history of low back problems; back examinations performed with treatment yielded normal results. In the available private treatment records from the Veteran's chiropractor in 2007-2008, he reported sustaining a herniated nucleus pulposus injury in the late 1980s for which he underwent therapy, as well as radiating back pain at the time of the current treatment, with another incident several years prior (2005). Notably, he did not report the in-service back injury or a history of chronic back pain, and he denied that the current symptomatology was related to an accident. In his January 2009 written submission, he indicated that he both experienced back trouble since leaving the Navy and experienced back problems on and off for approximately 30 years. In addition, the Veteran testified during the Board hearing that there was limited information that he could truthfully recall regarding his initial post-service treatment. Given these inconsistencies, when taken together, the Board finds that the Veteran's statements are not credible evidence to establish in-service onset or continuity of symptomatology of a lumbar spine disorder since separation from service. Again, while an in-service fall is acknowledged, the Veteran's memory is admittedly not strong due to the passage of time. More significantly, however, when he gave a history of symptomatology for the purpose of seeking treatment years later, the record shows that he did not report the in-service back injury or residual symptomatology. In fact, as previously discussed, during his chiropractor treatment of record, he reported a history of a back injury (herniated disc) that occurred in the late 1980s, approximately 30 years after service; this would constitute an intervening factor weighing against the service connection claim. These reports of symptoms made for the purpose of seeking treatment are highly probative and weigh against a finding of a credible report of continuity of symptomatology related to the in-service back injury. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board also acknowledges the other lay statements from the Veteran's wife and former employer. Both statements refer to the occurrence of an in-service back injury, a fact that is not in dispute. In addition, the Veteran's wife noted that the Veteran has experienced intermittent back pain since that time, also a fact that is not in dispute. In sum, while these statements aid in the Veteran's credibility as to continuity of symptomatology, the remainder of the record weighs against such a finding, as discussed above. Moreover, there is no competent and credible evidence of record otherwise linking the Veteran's current lumbar spine disorder to his active service. The medical evidence of record does not support the contention that his current degenerative disc disease, the one diagnosis of record, is related to his active service. VA treatment records are silent for any complaints or treatment for any lumbar spine disorders. The private treatment records note only a complaint of acute intermittent low back pain in 2005 and 2007, as well as a report of a herniated nucleus pulposus injury in the late 1980s. The Veteran also testified that no private physicians provided a nexus opinion relating his in-service injury to his current complaints of back problems; he was unable to recall with any certainty any diagnosis provided by the physician he visited shortly after service. Rather, the only opinion on the matter is the one provided by the April 2010 VA examiner, which weighs against the claim. The Board finds that this opinion is competent and highly probative, as the examiner reviewed the claims file and took a history from the Veteran, to include a report of his in-service injury. With the available information, the examiner concluded that the Veteran's current lumbar spine disorder was less likely than not related to service. Likewise, there is no competent and credible evidence of record showing the manifestation of arthritis to a compensable degree within one year of separation from service. In fact, as noted above, the medical evidence reveals that the Veteran was not diagnosed with degenerative disc disease (arthritis) until 2010 - nearly 53 years following service. The April 2010 VA examiner concluded that the current presentation of the lumbar spine did not support a finding of persistent residuals of an injury occurring approximately 50 years prior. Even considering the Veteran's recall of a "groin crack" diagnosis shortly after service, the Veteran does not contend that he was diagnosed with arthritis at that time. Thus, service connection is not warranted on a presumptive basis. In the absence of any credible evidence of arthritis of the lumbar spine manifested to a compensable degree within one year of separation, or a relationship between the Veteran's current complaints of lumbar spine symptoms and his service, all elements of service connection cannot be met. Coburn, supra. The Board concludes that the preponderance of the evidence is against a finding for service connection for a lumbar spine disorder. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, supra. B. Initial Ratings - Bilateral Hearing Loss Disability evaluations are determined by applying the criteria in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Each disability must be viewed in relation to its history, and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Separate evaluations may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (2001). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's service-connected bilateral hearing loss disability is assigned a noncompensable disability rating prior to September 1, 2011 and a 10 percent disability rating thereafter. Under the rating criteria, the method for rating bilateral hearing loss disability is based on examination results including a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test of puretone decibel thresholds at 1000, 2000, 3000, and 4000 Hz, with an average puretone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and puretone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. Exceptional hearing loss exists when the puretone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The Board notes that the audiological examination results of record show that the provisions of exceptional hearing loss are not applicable in this case. Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). On the May 2009 VA audiological examination, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 55 70 80 56.25 LEFT 20 55 75 90 60 Speech recognition was 88 percent in the right ear and 84 percent in the left ear. Using Table VI, the Veteran's May 2009 examination results revealed level II hearing in the right ear and level III in the left ear. Combining these levels according to Table VII results in a noncompensable rating. In September 2011, the Veteran again underwent VA audiological examination in accordance with the Board's July 2011 remand. He complained of difficulty hearing people unless they were close to him and the need to turn up the television and radio. He also reported that approximately four months prior, he obtained hearing aids from the VA which were of great assistance. On examination, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 50 65 75 54 LEFT 25 55 80 90 62 Speech recognition was 76 percent in the right ear and 68 percent in the left ear. Using Table VI, the Veteran's September 2011 examination results revealed level IV hearing in the right ear and level V hearing in the left ear. Combining these levels according to Table VII results in a 10 percent rating. The above evidence reflects that application of the rating schedule to the numeric designations assigned based on the two audiological examination reports in the claims file indicates that prior to September 1, 2011, a noncompensable evaluation is appropriate; thereafter, a 10 percent evaluation is appropriate based on the results of the September 2011 VA audiological evaluation showing a compensable level of hearing loss. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court addressed a challenge to VA's audiological testing practices, specifically, whether VA's policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room was valid. The Court also addressed the requirements for an adequate VA audiological examination report. The Court upheld VA's policy of conducting audiometry testing in a sound-controlled room. The Court also held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. Subsequently, however, in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1280 (Fed. Cir. 2009), the Federal Circuit indicated that, "while the effects of a disability on one's daily life are arguably relevant to a doctor conducting a medical examination, those effects are not relevant to a disability rating made by a ratings specialist," and "VA has never adopted an interpretation to the contrary." While the September 2011 VA examiner fully described the functional effects caused by the Veteran's hearing loss in the examination report, the May 2009 examiner did not describe such a finding. Given the Federal Circuit's statement in Vazquez-Flores, above, the Board finds the absence of a description of functional effects in the May 2009 examination report is not relevant to the rating of the Veteran's bilateral hearing loss disability and therefore did not prejudice him and does not require remand for a new VA examination. Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular evaluations assigned in this case are not inadequate. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's bilateral hearing loss disability, specifically his complaints that his hearing loss had increased slightly in severity, causing him problems with hearing people from a distance and turning up the volume on the television and radio. Accordingly, this issue need not be referred for consideration of an extraschedular rating. For the foregoing reasons, the Board finds that the staged ratings applied to the Veteran's service-connected bilateral hearing loss disability are appropriate, and the preponderance of the evidence is against findings for disability ratings in excess of those currently assigned. As such, the benefit-of-the-doubt rule does not apply, and the claims are denied. Gilbert, supra. ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to an initial compensable disability rating prior to September 1, 2011 for bilateral hearing loss disability is denied. Entitlement to an initial disability rating in excess of 10 percent from September 1, 2011 for bilateral hearing loss disability is denied. ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs