Citation Nr: 1309532 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 09-06 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a respiratory/lung disability to include as due to asbestos exposure. 2. Entitlement to an initial disability rating in excess of 10 percent prior to August 13, 2012 and 50 percent as of August 13, 2012 for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from March 1961 to February 1965. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified during a hearing before the undersigned Veterans Law Judge in May 2012. A transcript of the hearing is of record. The Board remanded these issues in July 2012 for further development. After accomplishing the requested actions to the extent possible, the RO continued the denial of the claims in the December 2012 supplemental statement of the case and returned these matters to the Board for further appellate consideration. In a December 2012 rating decision, the RO awarded the Veteran an increased rating for his bilateral hearing loss to 50 percent, effective August 13, 2012. After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issue is still properly before the Board and the issue has been appropriately rephrased above. FINDINGS OF FACT 1. The preponderance of the evidence shows that a lung/respiratory disability is not related to the Veteran's active military service or to any event therein, to include asbestos exposure. 2. Prior to August 13, 2012, the preponderance of the evidence shows that the Veteran's service-connected bilateral hearing loss was manifested by Level IV hearing acuity in both ears. 3. As of August 13, 2012, the Veteran's service-connected bilateral hearing loss was manifested by Level VII hearing acuity in the right ear and Level IX hearing acuity in the left ear. CONCLUSIONS OF LAW 1. A lung/respiratory disability was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for an initial disability rating in excess of 10 percent prior to August 13, 2012 and 50 percent as of August 13, 2012 for service-connected bilateral hearing loss have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that the letter dated in November 2006 satisfied the duty to notify provisions prior to the initial AOJ decision in September 2007. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Specifically, the letter advised the Veteran what information and evidence was needed to substantiate his service connection claim for a pulmonary/lung condition to include as due to asbestos. The letter requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records and records from other Federal agencies. The Veteran was notified of how VA will determine the disability rating and effective date if his claim is granted. With respect to the Veteran's increased rating claim, he is appealing the initial rating assignment for his service-connected bilateral hearing loss. The September 2007 rating decision granted the Veteran's claim of entitlement to service connection and therefore, such claim is now substantiated. His filing of a notice of disagreement as to the initial rating assigned in the September 2007 determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, the Veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2012). Accordingly, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished in the January 2009 statement of the case , under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," which sets forth the relevant diagnostic code for rating bilateral hearing loss including a description of the rating formulas for all possible schedular ratings under this diagnostic code. Therefore, the Veteran was informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve a higher rating for the service-connected disability on appeal. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records, VA treatment records and VA examination reports dated in April 2007, January 2009 and August 2012. The January 2009 VA examination report shows that the examiner conducted a review of the claims file, obtained an oral history from the Veteran. After evaluating the Veteran, the examiner determined that there was no confirmed diagnosis. The Veteran was provided with another VA examination in August 2012 to clarify whether or not the Veteran had a respiratory/lung disability and if so, whether it is related to asbestos exposure during military service. The August 2012 VA examination report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating the Veteran. She discussed the relevant evidence of record and documented the results of the clinical evaluation. Following the above, the examiner provided a diagnosis and a nexus opinion with supporting rationale, which appears to be based on the evidence of record. As such, the Board finds the August 2012 VA examination is adequate for rating purposes. The April 2007 and August 2012 VA audiological examination reports reflect that the examiners reviewed the claims file in addition to obtaining an oral history of hearing loss from the Veteran and conducting a physical evaluation. The examiners documented the audiogram results and the Maryland CNC speech recognition threshold for each ear. With respect to VA audiological examinations, a VA audiologist, in addition to dictating objective test results, must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The August 2012 VA examiner documented that the Veteran reported difficulty communicating in many situations, such as informal conversations with friends and family members. He also indicated difficulty conversing by phone and difficulty comprehending television and radio dialogue. He also has significant problems conversing in the presence of background noise. Accordingly, the Board finds that the examiner described the functional effects caused by the hearing disability in his report. Based on the foregoing, the Board concludes that the April 2007 and August 2012 VA examinations are adequate for rating purposes. In addition, as noted in the Introduction, these claims were previously remanded in July 2012 in order to obtain VA examinations. The claims file contains two VA examination reports that evaluated the current severity of the Veteran's hearing loss and provide a diagnosis and opinion with respect to the Veteran's service connection claim for a respiratory/lung disability. These examinations address the issues raised by the Board and they were supported by an explanation. Accordingly, the Board finds that there has been substantial compliance with the July 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the claims file contains the Veteran's statements in support of his claim. The Veteran has not identified and the record does not otherwise indicate any existing pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claim for Service Connection The Veteran filed a service connection claim for a lung disorder in October 2006. He contends that his lung/respiratory disability is due to asbestos exposure on board the USS Coral Sea as a machinist mate during military service. He explained that as a machinist mate on the USS Coral Sea he worked on refrigeration units, compressors and piping. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). With regard to arguments raised as to asbestos exposure, there is no specific statutory guidance, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The aforementioned provisions of M21-1 have been rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled 'Developing Claims for Service Connection for Asbestos-Related Diseases,' and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim of entitlement to service connection for asbestosis or asbestos- related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The guidelines provide that the latency period for asbestos-related diseases varies from 10 to 45 years or more between first exposure and development of disease. An asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos- related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The Court has further held that in adjudicating asbestos-related claims, it must be determined whether development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120 (1997). The Manual guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that rating specialists are to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chap. 2, Section C, Subsection (h). See also VAOPGCPREC 4-2000 (Apr. 13, 2000); 65 Fed. Reg. 33,422 (2000). In assessing the Veteran's service connection claim for a respiratory/lung disability, the evidence of record must indicate that the Veteran has a current diagnosis of the claimed disability. A private treatment record dated in November 2006 shows that the Veteran reported a prior medical history of chronic obstructive pulmonary disorder (COPD) and possible asbestosis. A VA active problem list dated in December 2007 includes the diagnosis of pulmonary emphysema. A July 2008 VA treatment record shows that the Veteran has no spirometric evidence of COPD, but he has symptoms of exertional dyspnea. The physician noted that the CT scan revealed mild atypical scarring compatible with old granulomatous disease and mild emphysematous changes. There was no evidence of mass or lymphadenopathy. The VA examiners in January 2009 and August 2012 determined that the Veteran did not have COPD. The examiner in August 2012 determined that the Veteran did not have a current diagnosis of asbestosis. She noted that CT scans are very sensitive in diagnosis of asbestosis and the August 2012 CT scan showed emphysematous, but no evidence of asbestos exposure. Based on the foregoing, the Board finds that the medical evidence of record shows that the Veteran has a current diagnosis of the lung disorder, emphysema. A review of the Veteran's service treatment records show that there were no complaints of, treatment for or a diagnosis of a lung or respiratory disorder during military service. The Veteran's separation examination dated in February 1965 reveals that the Veteran's lungs and chest were evaluated as normal. The first evidence of complaints of a lung/respiratory disability was in 2006 and the first medical evidence of the Veteran seeking treatment for a lung disorder was in 2006, approximately 41 years after military service. The first medical evidence of a diagnosis of emphysema was in 2007, approximately 42 years after discharge from military service. With respect to the Veteran's claim of exposure to asbestos in service, the Board notes that the Veteran's service personnel records reveal that the Veteran served on the USS Coral Sea as a cadet engineer. The Veteran reported that when he served in the military he worked on refrigeration units, compressors and piping on ships. He submitted a buddy statement dated in October 2007 from a service member, J.D.G., who served with him on the USS Coral Sea. J.D.G. explained that he and the Veteran had to tear out pipe lagging that was made out of hand mixed asbestos. He also noted that when they would put the valves and lines back together, they would take bags of asbestos fibers, mix it like plaster and form it around lines with their bare hands. The Board finds that the Veteran's military occupational specialty was one, which would normally place him at high risk of exposure to asbestos. Thus, based on the nature of the Veteran's military occupational specialty, the Board finds that the statements of exposure to asbestos by the Veteran and a fellow service member are consistent with the circumstances of the Veteran's service. 38 U.S.C.A. § 1154(a) (West 2002). Accordingly, the Board concedes that the Veteran was exposed to asbestos during military service. Nonetheless, the record contains a VA medical opinion dated in August 2012 asserting that the Veteran's current lung disability is less likely than not incurred in or caused by the claimed in-service injury or event. The August 2012 VA examiner noted that she reviewed the claims file and the Veteran's VA medical records. After a review of the medical records, taking a history from the Veteran, performing an examination, she concluded that the Veteran did not have a diagnosis of asbestosis. The examiner determined that the Veteran had emphysema. She explained that the main cause of emphysema is long-term exposure to airborne irritants, including tobacco smoke, marijuana smoke, air pollution, manufacturing fumes and silica dust. Rarely, emphysema is caused by an inherited deficiency of a protein that protects the elastic structures in the lungs. Most likely the cause of the Veteran's emphysematous is due to his tobacco use. The Board concludes this VA opinion is persuasive and probative as the examiner provided a clear explanation based on the medical evidence of record and general medical knowledge. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board also finds it persuasive that the claims file does not contain any other medical opinion that would indicate the Veteran's current lung or respiratory disorders are related to military service. The Board notes that the Veteran contends that his respiratory or lung disorders are related to active military service to include exposure to asbestos. The Board concludes that the Veteran, as a lay person, is not competent to provide a medical opinion on the etiology of his lung disorder, because it requires specific medical knowledge. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's lung/respiratory disability is not etiologically related to active military service to include asbestos exposure. Thus, the benefit of the doubt doctrine is not applicable in this case. Accordingly, entitlement to service connection for a lung/respiratory disability is not warranted. III. Merits of the Claim for Increased Rating The Veteran filed a service connection claim for bilateral hearing loss in October 2006. The RO granted the claim for bilateral hearing loss and assigned a 10 percent disability rating with an effective date of October 6, 2006. The Veteran appeals this decision contending that the current disability rating should be higher. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C.A. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Thus, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Id. Relevant laws and regulations stipulate that evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § 4.85 (2012) establish eleven auditory acuity levels from I to XI. If hearing loss is service-connected for only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). Tables VI and VII as set forth in section 4.85(h) are used to calculate the rating to be assigned. In guidance for cases involving exceptional patterns of hearing impairment, the schedular criteria stipulates that, when the puretone 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. 38 C.F.R. § 4.86(a) (2012). Each ear is evaluated separately. Additionally, when the puretone 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. 38 C.F.R. § 4.86(b). The numeral will then be elevated to the next higher Roman numeral. Id. Each ear will be evaluated separately. During the pendency of this appeal, the RO increased the disability rating assigned to the Veteran's hearing loss from 10 percent to 50 percent under Diagnostic Code 6100, effective August 13, 2012. The Board will therefore consider whether the Veteran is entitled to a higher disability rating under both stages of this appeal. Additionally, the Board has considered whether additional staging is appropriate. For reasons discussed in more detail below, the Board finds that the stages created by the RO are appropriate in light of the competent medical evidence of record and that there is no competent evidence that the Veteran's service-connected disability underwent additional increases in severity during this appeal sufficient to warrant a higher evaluation at any time during the appeal. Prior to August 13, 2012 The Veteran underwent a VA audiology examination in April 2007. The VA examination report shows the Veteran had 76 percent speech recognition in his right ear. The Veteran exhibited puretone thresholds in the right ear of 45 dB at 1000 Hz, 55 dB at 2000 Hz, 65 dB at 3000 Hz and 65 dB at 4000 Hz. The average decibel loss for the right ear was 58 dB. The VA examination shows the Veteran had 78 percent speech recognition in his left ear. The Veteran exhibited puretone thresholds in the left ear of 45 dB at 1000 Hz, 55 dB at 2000 Hz, 65 dB at 3000 Hz and 65 dB at 4000 Hz. The average decibel loss for the left ear was 58 dB. The Board notes that the Veteran did not meet the exception requirements for hearing impairment under 38 C.F.R. § 4.86. The examiner also did not certify that the use of speech discrimination test was not appropriate. Therefore, the numerical hearing impairment is determined only by Table VI. The Veteran's hearing acuity in both ears is assigned to Level IV. Diagnostic Code 6100, Table VII provides a 10 percent disability rating for the hearing impairment demonstrated by the Veteran at the April 2007 VA examination. As of August 13, 2012 The Veteran was provided with another VA audiological examination in August 2012. The Veteran's speech recognition in the right ear was 74 percent. His puretone thresholds in the right ear was 60 dB at 1000 Hz, 85 dB at 2000 Hz, 85 dB at 3000 Hz and 85 dB at 4000 Hz. The average decibel loss for the right ear was 79 dB. The VA examination shows the Veteran had 50 percent speech recognition in his left ear. The Veteran exhibited puretone thresholds in the left ear of 75 dB at 1000 Hz, 80 dB at 2000 Hz, 85 dB at 3000 Hz and 85 dB at 4000 Hz. The average decibel loss for the left ear was 81 dB. The Board notes both ears meet the exception requirements for hearing impairment under 38 C.F.R. § 4.86(a), because the puretone thresholds at each of the four specified frequencies is 55 dB or more. Therefore, the numerical hearing impairment is determined by either Table VI or Table VIA, whichever results in the higher numeral. Under Table VI, the Veteran's hearing acuity in the right ear is assigned to Level VI and the left ear is assigned to Level IX. Under Table VIa, the Veteran's hearing acuity in both ears is assigned to Level VII. Accordingly, the Veteran's right ear will be assigned using Table VIa and the left ear will be assigned using Table VI as that provides the higher numeral for each ear. Diagnostic Code 6100, Table VII provides a 50 percent disability rating for the hearing impairment demonstrated by the Veteran at the August 13, 2012 VA examination. In conclusion, the benefit of the doubt is to be resolved in the Veteran's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, the Board finds that the preponderance of the evidence is against the claim and an assignment of a disability rating in excess of 10 percent prior to August 13, 2012 and in excess of 50 percent as of August 13, 2012 on a schedular basis is not warranted. See 38 C.F.R. § 3.102 (2012). According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular 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) (2012). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for bilateral hearing loss is inadequate. A comparison between the level of severity and symptomatology of the Veteran's bilateral hearing loss with the established criteria found in the rating schedule for hearing impairment shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The Board observes that the Veteran testified during the May 2012 Board hearing that he was fired from a job due to his hearing impairment, because he was a danger to the other employees. However, he also noted that he started his own business, but he had difficulty hearing in the large conference rooms once the business grew. The Veteran reported during the August 2012 VA examination that he has difficulty communicating in many situations, such as, informal conversations with friends and family members. He also has difficulty conversing by phone and comprehending television and radio dialogue. However, the examiner observed that the Veteran is able to communicate with relative ease with his hearing aids and when in a quiet environment. Although the Veteran's service-connected bilateral hearing loss has interfered with his past employment, the Board concludes that it has not caused marked interference with employment that is not already contemplated in the current rating criteria. In addition, the evidence reveals that his bilateral hearing loss has not necessitated any frequent periods of hospitalization or has otherwise rendered impracticable the application of the regular schedular standards. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability; either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER Entitlement to service connection for a respiratory/lung disability to include as due to asbestos exposure is denied. Entitlement to an initial disability rating in excess of 10 percent prior to August 13, 2012 and 50 percent as of August 13, 2012 for service-connected bilateral hearing loss is denied. ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs